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	Top Leadership Commitment Is Critical to Sustained Progress in Strengthening Management Functions

With top leadership support and commitment, DHS has made important  progress in strengthening its management functions, but considerable  work remains. As shown in figure 1, as of March 2019, DHS had met  three out of five criteria for removal from our High Risk List—leadership  commitment, action planning, and monitoring progress.
DHS has partially met the remaining two criteria: capacity (i.e., people  and other resources) and demonstrated, sustained progress. To address  the criteria for capacity, DHS needs to make additional progress in  identifying and allocating resources in certain areas—namely, acquisition,  information technology, and financial management—to fully demonstrate  its capacity. For the criteria for demonstrated, sustained progress, we  reported in March 2019 that DHS had fully addressed 17 out of the 30  outcomes that are the basis for gauging DHS’s progress across  management areas, as shown in table 1.
To fully meet the criteria for demonstrated, sustained progress, DHS  needs to continue implementing its Integrated Strategy for High-Risk  Management and maintain engagement with us to show measurable,  sustainable progress in implementing corrective actions and achieving  outcomes. DHS can accomplish this by, among other things, maintaining  a high level of top leadership support and sustained commitment to  ensure continued progress in executing its corrective actions through  completion, and increasing employee engagement and morale.
Examples of important programs and remaining work in the key  management functions include:  In the key management function of human capital management, DHS  leadership is needed to address skills gaps that have had a significant  role in the DHS management high-risk area. For example, we have  found that DHS lacks guidance on how to identify critical cybersecurity  and acquisition skills needed to support its new information  technology delivery model. We have also found that DHS has  insufficient technical skills to support its biometric identification  services program. Addressing these skill gaps could help DHS fully  demonstrate its capacity to strengthen and integrate its management  functions.
Additionally, within human capital management, DHS has struggled  with low employee morale scores since it began operations in 2003.  DHS’s 2018 score ranked 20th among 20 large and very large federal  agencies. Increasing employee engagement and morale is critical to  strengthening DHS’s mission and management functions. DHS has  continued to strengthen its employee engagement efforts by  implementing our 2012 recommendation to establish metrics of  success within components’ action plans for addressing its employee  satisfaction problems. Further, DHS has conducted audits to better  ensure components are basing hiring decisions and promotions on  human capital competencies. In addition, OPM’s 2018 Federal  Employee Viewpoint Survey data showed that in the past 2 years,  DHS’s score on the Employee Engagement Index (EEI) increased by  4 points—from 56 in 2016 to 60 in 2018—which was 1 point more  than the government-wide increase over the same period. While this  improvement is notable, DHS’s current EEI score is 1 point below its  EEI baseline score in 2010, suggesting that DHS is still working to  regain lost ground after an 8 point drop between 2010 and 2015.
In the key management function of financial management, DHS  officials have faced challenges modernizing DHS components’  financial management systems and business processes that affect the  department’s ability to have ready access to timely and reliable  information for informed decision-making. Effectively modernizing  financial management systems for the Coast Guard, FEMA, and ICE  would help improve the reliability of their financial reporting.
As we have reported, perhaps the single most important element of  successful management improvement and transformation initiatives is the  demonstrated commitment of top leaders, as shown by their personal  involvement in reform efforts. With regard to leadership commitment,  DHS’s top leadership, including leaders at the Secretary and Deputy  Secretary level, has demonstrated exemplary commitment and support  for addressing the department’s management challenges. They have also  taken actions to institutionalize this commitment to help ensure the long- term success of the department’s efforts. One such effort is the Under  Secretary for Management’s Integrated Priorities initiative to strengthen  the integration of DHS’s business operations across the department.
During monthly leadership meetings with the Under Secretary for  Management, the department’s Chief Executive Officers have been  providing status updates on their respective actions to address this high- risk designation. Furthermore, top DHS leaders, such as the Under  Secretary for Management and the department’s Chief Executive  Officers, routinely meet with our management to discuss progress on  high-risk areas.

	Continued Leadership Commitment Is Critical to Addressing Priority Open Recommendations

In April 2019, we sent a letter to the Acting Secretary of Homeland  Security detailing 26 open recommendations that we deem highest  priority for implementation. Priority recommendations are those that we  believe warrant priority personal attention from heads of key departments  or agencies. These 26 recommendations fall into six major areas— emergency preparedness and response, border security, transportation  security, infrastructure and management, cybersecurity, and chemical  and nuclear security. Many of these recommendations cut across DHS’s  mission areas that are critical for national security. Given that these  recommendations are often the most complex and difficult to implement,  top DHS leadership will play a critical role in addressing them.
Fourteen of the 26 priority open recommendations we identified in the  April 2019 letter are directed to acting officials serving in vacant positions.  We have issued 12 recommendations to the Secretary of Homeland  Security who is currently an acting official. We have also issued two  recommendations to FEMA which is currently operating under acting  leadership.
Committed and consistent leadership at the department and component  levels will be critical for addressing our priority recommendations. For  example:  In September 2014, we recommended that the Secretary of  Homeland Security work jointly with the Administrator of the General  Services Administration to strengthen management of the ongoing  acquisition project to develop the multi-billion dollar headquarters  facilities at the St. Elizabeth’s campus in Washington, D.C.
Leadership is critical in this effort, given the magnitude of the project  and the impact of headquarters consolidation on DHS operations.
In October 2008, we recommended actions that FEMA should take to  improve its administration of the National Flood Insurance Program  high-risk area. We also recommended in September 2012 that  FEMA develop a methodology to better assess a jurisdiction's  capability to respond to and recover from a disaster without federal  assistance. In July 2015, we further recommended that the  Mitigation Framework Leadership Group establish an investment  strategy to identify, prioritize, and guide federal investments in  disaster resilience. Implementing these actions could limit the  federal government’s fiscal exposure and increase the nation’s  resilience to extreme weather events as the costs and impacts of  weather disasters resulting from floods, drought, and other events are  expected to increase in significance as previously “rare” events  become more common and intense.
In July 2018, we recommended that U.S. Customs and Border  Protection (CBP) analyze the costs associated with future barrier  segments along the southwest border and include cost as a factor in  the Impedance and Denial Prioritization Strategy. Obtaining this key  information could help CBP evaluate designs and prioritize locations  for future border barrier segments to deter cross-border illegal  activity.
In February 2017, we recommended that DHS establish metrics and  methods by which to evaluate the performance of DHS’s National  Cybersecurity and Communications Integration Center in relation to its  statutorily-required cybersecurity functions. Until it develops metrics  and methods to evaluate its performance, the center cannot ensure  that it is effectively meeting its statutory requirements, while cyber- based intrusions and attacks on federal systems and systems  supporting our nation’s critical infrastructure are becoming more  numerous, damaging, and disruptive. We also recommended in  February 2018 that DHS take steps to better manage and assess its  cybersecurity workforce gaps and areas of critical need. Given its  important role in the nation’s cybersecurity, taking steps to address  these issues will be critical.
We will continue to monitor DHS’s progress in strengthening  management functions and addressing priority recommendations. We  also plan to continue to meet quarterly with DHS management to gauge  leadership commitment, discuss progress, and review DHS’s goals and  corrective action plans in its Integrated Strategy for High-Risk  Management, which DHS issues twice per year.
Thank you, Chairman Thompson, Ranking Member Rogers, and  Members of the Committee. This concludes my testimony. I would be  pleased to answer any questions.

	GAO Contact and Staff Acknowledgments

For further information on this testimony, please contact Christopher P.  Currie at (404) 679-1875 or curriec@gao.gov. Contact points for our  Offices of Congressional Relations and Public Affairs may be found on  the last page of this statement. Other individuals making key contributions  to this work include Alana Finley, Assistant Director; Luis E. Rodriguez,  Analyst-in-Charge; Karin Fangman; Andrew Howard; and Thomas  Lombardi. Key contributors for the previous work that this is based on are  listed in each product.
This is a work of the U.S. government and is not subject to copyright protection in the  United States. The published product may be reproduced and distributed in its entirety  without further permission from GAO. However, because this work may contain  copyrighted images or other material, permission from the copyright holder may be  necessary if you wish to reproduce this material separately.


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	Congressional Notification Requirements

This report reviews the process and procedures that currently apply to congressional consideration of foreign arms sales proposed by the President. This includes consideration of proposals to sell major defense equipment, defense articles and services, or the retransfer to other states of such military items. In general, the executive branch, after complying with the terms of applicable U.S. law, principally contained in the Arms Export Control Act (AECA) (P.L. 90-629, 82 Stat. 1320), is free to proceed with an arms sales proposal unless Congress passes legislation prohibiting or modifying the proposed sale. The President has the obligation under the law to submit the arms sale proposal to Congress, but only after he has determined that he is prepared to proceed with any such notifiable arms sales transaction.
The Department of State (on behalf of the President) submits a preliminary or informal notification of a prospective major arms sale 20 calendar days before the executive branch takes further formal action. This informal notification is provided to the committees of primary jurisdiction for arms sales issues. In the Senate, this is the Senate Foreign Relations Committee; in the House, it is the Foreign Affairs Committee. It has been the practice for such informal notifications to be made for arms sales cases that would have to be formally notified to Congress under the provisions of Section 36(b) of the AECA. The informal notification practice stemmed from a February 18, 1976, letter from the Department of Defense making a nonstatutory commitment to give Congress these preliminary classified notifications. Beginning in 2012, the State Department implemented a new informal notification process, which the department calls a "tiered review," in which the relevant committees are notified between 20 and 40 calendar days before receiving formal notification, depending on the system and destination in question.
During June 2017 testimony, Acting Assistant Secretary of State Tina Kaidanow described this process as
Congressional review period during which the Committees can ask questions or raise concerns prior to the Department of State initiating formal notification. The purpose is to provide Congress the opportunity to raise concerns, and have these concerns addressed, in a confidential process with the Administration, so that our bilateral relationship with the country in question is protected during this process.
If a committee "raises significant concerns about a sale or [export] license," the State Department "will typically extend the review period until we can resolve those concerns," Kaidanow explained.
Under Section 36(b) of the AECA, Congress must be formally notified 30 calendar days before the Administration can take the final steps to conclude a government-to-government foreign military sale of major defense equipment valued at $14 million or more, defense articles or services valued at $50 million or more, or design and construction services valued at $200 million or more. In the case of such sales to NATO member states, NATO, Japan, Australia, South Korea, Israel, or New Zealand, Congress must be formally notified 15 calendar days before the Administration can proceed with the sale. However, the prior notice threshold values are higher for NATO members, Japan, Australia, South Korea, Israel, or New Zealand. These higher thresholds are $25 million for the sale, enhancement, or upgrading of major defense equipment; $100 million for the sale, enhancement, or upgrading of defense articles and defense services; and $300 million for the sale, enhancement, or upgrading of design and construction services, so long as such sales to these countries do not include or involve sales to a country outside of this group of states. Section 36(i) requires the President to notify both the Senate Foreign Relations Committee and House Foreign Affairs Committee at least 30 days in advance of a pending shipment of defense articles subject to the 36(b) requirements if the chairman and ranking member of either committee request such notification. Certain articles or services listed on the Missile Technology Control Regime are subject to a variety of additional reporting requirements.
Commercially licensed arms sales also must be formally notified to Congress 30 calendar days before the export license is issued if they involve the sale of major defense equipment valued at $14 million or more, or defense articles or services valued at $50 million or more (Section 36(c) AECA). In the case of such sales to NATO member states, NATO, Japan, Australia, South Korea, Israel, or New Zealand, Congress must be formally notified 15 calendar days before the Administration can proceed with such a sale. However, the prior notice threshold values are higher for sales to NATO members, Japan, Australia, South Korea, Israel, or New Zealand, specifically: $25 million for the sale, enhancement, or upgrading of major defense equipment; $100 million for the sale, enhancement, or upgrading of defense articles and defense services; and $300 million for the sale, enhancement, or upgrading of design and construction services, so long as such sales to these countries do not include or involve sales to a country outside of this group of states. Furthermore, commercially licensed arms sales of firearms (which are on category I of the United States Munitions List) valued at $1 million or more must also be formally notified to Congress for review 30 days prior to the license for export being approved (15 days prior notice is required for proposed licenses for sales to NATO members, Japan, Australia, South Korea, Israel, or New Zealand).
Section 36(b)(5)(A) contains a reporting requirement for defense articles or equipment items whose technology or capability has, prior to delivery, been "enhanced or upgraded from the level of sensitivity or capability described" in the original congressional notification. For such exports, the President must submit a report to the relevant committees at least 45 days before the exports' delivery that describes the enhancement or upgrade and provides "a detailed justification for such enhancement or upgrade." This requirement applies for 10 years after the Administration has notified Congress of the export. According to Section 36(b)(5)(C), the Administration must, in the case of upgrades or enhancements meeting certain value thresholds, submit a new notification to Congress and the export will be considered "as if it were a separate letter of offer ... subject to all of the requirements, restrictions, and conditions set forth in this subsection." The threshold values are higher for sales to NATO members, Japan, Australia, South Korea, Israel, or New Zealand.
A congressional recess or adjournment does not stop the 30 calendar-day statutory review period. It should be emphasized that after Congress receives a statutory notification required under Sections 36(b) or 36(c) of the AECA, for example, and 30 calendar days elapse without Congress having blocked the sale, the executive branch is free to proceed with the sales process. This fact does not mean necessarily that the executive branch and the prospective arms purchaser will sign a sales contract and that the items will be transferred on the 31 st day after the statutory notification of the proposal has been made. It would, however, be legal to do so at that time.

	Congressional Disapproval by Joint Resolution

Although Congress has more than one legislative option it can use to block or modify an arms sale, one option explicitly set out in law for blocking a proposed arms sale is the use of a joint resolution of disapproval as provided for in Section 36(b) of the AECA. Under that law, the formal notification is legally required to be submitted to the chairman of the Senate Foreign Relations Committee and the Speaker of the House. The Speaker has routinely referred these notifications to the House Foreign Affairs Committee as the committee of jurisdiction. As a courtesy, the Defense Department has submitted a copy of the statutory notification to the House Foreign Affairs Committee when that notification is submitted to the Speaker of the House. Under this option, after receiving a statutory Section 36(b) notification from the executive branch, opponents of the arms sale would introduce joint resolutions in the House and Senate drafted so as to forbid by law the sale of the items specified in the formal sale notification(s) submitted to Congress. If no Member introduces such a measure, the AECA's provisions expediting congressional action, discussed below, do not take effect.
The next step would be committee hearings in both houses on the arms sale proposal. If a majority of either the House or the Senate committee supported the joint resolution of disapproval, they would report it to their respective chamber in accordance with its rules. Following this, efforts would be made to seek floor consideration of the resolution.

		Senate Procedures

At this point, it is important to take note of procedures crafted to expedite the consideration of arms sales resolutions of disapproval. Since 1976, Section 36(b)(2) of the AECA has stipulated that consideration of any resolution of disapproval in the Senate under Section 36(b)(1) of the AECA shall be "in accordance with the provisions of Section 601(b) of the International Security Assistance and Arms Export Control Act of 1976" ( P.L. 94-329 , 90 Stat. 729). Since 1980, this stipulation has also applied to resolutions of disapproval in the Senate relating to commercially licensed arms sales under Section 36(c)(1) of the AECA. The purpose of Section 601(b) was to establish rules to facilitate timely consideration of any resolution of disapproval in the Senate. The rules set forth in Section 601(b) supersede the standing rules of the Senate and include the following:
Give the committee with jurisdiction [the Senate Foreign Relations Committee] 10 calendar days from the date a resolution of disapproval is referred to it to report back to the Senate its recommendation on any such resolution (certain adjournment periods are excluded from computation of the 10 days); Make it in order for a Senator favoring a disapproval resolution to move to discharge the committee from further consideration of the matter if the committee fails to report back to the Senate by the end of the 10 calendar days it is entitled to review the resolution (the AECA expressly permits a discharge motion after 5 calendar days for sales to NATO, NATO countries, Japan, Australia, South Korea, Israel, and New Zealand); Make the discharge motion privileged, limit floor debate on the motion to one hour, and preclude efforts to amend or to reconsider the vote on such a motion; Make the motion to proceed to consider a resolution of disapproval privileged and preclude efforts to amend or to reconsider the vote on such motion; Limit the overall time for debate on the resolution of disapproval to 10 hours and preclude efforts to amend or recommit the resolution of disapproval; Limit the time (one hour) to be used in connection with any debatable motion or appeal; provide that a motion to further limit debate on a resolution of disapproval, debatable motion, or appeal is not debatable.
The Senate is constitutionally empowered to amend its rules or to effect a rule change at any time. The fact that an existing rule is in Section 601 of the International Security Assistance and Arms Export Control Act of 1976 is not an obstacle to changing it by Senate action alone should the Senate seek to do so.

		House Floor Procedures12

The House of Representatives is directed by Sections 36(b)(3) and 36(c)(3)(B) of the AECA to consider a motion to proceed to the consideration of a joint resolution disapproving an arms sale reported to it by the appropriate House committee as "highly privileged." Generally, this means that the resolution will be given precedence over most other legislative business of the House, and may be called up on the floor without a special rule reported by the Rules Committee. Unlike for the Senate, however, the AECA contains no provision for discharge of the House committee if it does not report on the joint resolution. If reported and called up, the measure will be considered in the Committee of the Whole, meaning that amendments can be offered under the "five-minute rule." Nevertheless, amendments to joint resolutions disapproving arms sales have apparently never been offered in the House.
The Rules Committee usually sets the framework for floor consideration of major legislation in the House of Representatives, however, and could do so for a joint resolution of disapproval. Upon receiving a request for a rule to govern consideration of such a resolution, the House Rules Committee could set a time limit for debate, exclude any amendments to, and waive any points of order against the resolution. If the House adopted the rule reported by the committee, it would govern the manner in which the legislation would be considered, superseding the statutory provision.

		Final Congressional Action

After a joint resolution is passed by both the House and the Senate, the measure would next be sent to the President. Once this legislation reaches the President, presumably he would veto it in a timely manner. Congress would then face the task of obtaining a two-thirds majority in both houses to override the veto and impose its position on the President.

	Congressional Use of Other Legislation

Congress can also block or modify a proposed sale of major defense equipment, or defense articles and services, if it uses the regular legislative process to pass legislation prohibiting or modifying the sale or prohibiting delivery of the equipment to the recipient country. While it is generally presumed that Congress will await formal notification under Section 36(b) or 36(c) of the AECA before acting in opposition to a prospective arms sale, it is clear that a properly drafted law could block or modify an arms sale transaction at any timeâincluding before a formal AECA notification was submitted or after the 30-day AECA statutory notification period had expiredâso long as the items have not been delivered to the recipient country.
Congressional use of its lawmaking power regarding arms sales is not constrained by the AECA reporting requirements. In order to prevail, however, Congress must be capable of overriding a presidential veto of this legislation, for the President would presumably veto a bill that blocked his wish to make the arms sale in question. This means, in practical terms, that to impose its view on the President, Congress must be capable of securing a two-thirds majority of those present and voting in both houses.
There are potentially important practical advantages, however, to prohibiting or modifying a sale, if Congress seeks to do so, prior to the date when the formal contract with the foreign government is signedâwhich could occur at any time after the statutory 30-day period. These likely advantages include (1) limiting political damage to bilateral relations that could result from signing a sales contract and later nullifying it with a new law; and (2) avoiding financial liabilities which the U.S. Government might face for breaking a valid sales contract. The legislative vehicle designed to prohibit or modify a specific arms sale can take a variety of forms, ranging from a rider to any appropriation or authorization bill to a freestanding bill or joint resolution. The only essential features that the vehicle must have are (1) that it is legislation passed by both houses of Congress and presented to the President for his signature or veto and, (2) that it contains an express restriction on the sale and/or the delivery of military equipment (whether it applies to specific items or general categories) to a specific country or countries.

	Presidential Waiver of Congressional Review

It is important to note that the President also has the legal authority to waive the AECA statutory review periods. For example, if the President states in the formal notification to Congress under AECA Sections 36(b)(1), 36(c)(2), 36(d)(2) that "an emergency exists" which requires the sale (or export license approval) to be made immediately "in the national security interests of the United States," the President is free to proceed with the sale without further delay. The President must provide Congress at the time of this notification a "detailed justification for his determination, including a description of the emergency circumstances" which necessitated his action and a "discussion of the national security interests involved." AECA Section 3(d) (2)(A) provides similar emergency authority with respect to retransfers of U.S.-origin major defense equipment, defense articles, or defense services.
Section 614(a) of the Foreign Assistance Act of 1961 (FAA), as amended, also allows the President, among other things, to waive provisions of the AECA, the FAA, and any act authorizing or appropriating funds for use under either the AECA or FAA in order to make available, during each fiscal year, up to $750 million in cash arms sales and up to $250 million in funds. Not more than $50 million of the $250 million limitation on funds use may be made available to any single country in any fiscal year through this waiver authority unless the country is a "victim of active aggression." Not more than $500 million of cash sales (or cash sales and funds made available combined) may be provided under this waiver authority to any one country in any fiscal year. To waive the provisions of these acts related to arms sales, the President must determine and notify Congress in writing that it is "vital" to the "national security interests" of the United States to do so. Before exercising the authority granted in Section 614(a), the President must "consult with" and "provide a written policy justification to" the House Foreign Affairs and the Senate Foreign Relations Committees and House and Senate Appropriations Committees.
In summary, in the absence of a strong majority in both houses of Congress supporting legislation to block or modify a prospective arms sale, the practical and procedural obstacles to passing such a lawâwhether a freestanding measure or one within the AECA frameworkâare great. Even if Congress can pass the requisite legislation to work its will on an arms sale, the President need only veto it and secure the support of one-third plus one of the Members of either the Senate or the House to have the veto sustained and permit the sale.
It should be noted that Congress has never successfully blocked a proposed arms sale by use of a joint resolution of disapproval, although it has come close to doing so (see section below for selected examples). Nevertheless, Congress hasâby expressing strong opposition to prospective arms sales, during consultations with the executive branchâaffected the timing and the composition of some arms sales, and may have dissuaded the President from formally proposing certain arms sales.

		2019 Sales to Jordan, Saudi Arabia, and the United Arab Emirates

On May 24, 2019, Secretary of State Michael Pompeo stated that he had directed the State Department "to complete immediately the formal notification of 22 pending arms transfers" to Jordan, Saudi Arabia, and the United Arab Emirates. In a determination to Congress, Pompeo invoked the AECA Section 36 emergency provisions described above. The transfers included a variety of defense articles and services, as well as an agreement to coproduce and manufacture components of Paveway precision-guided munitions in Saudi Arabia. On June 20, 2019, the Senate passed S.J.Res. 36 , which prohibited both the Paveway coproduction agreement described above and the transfer of additional such munitions, and S.J.Res. 38 , which prohibited transfers of "defense articles, defense services, and technical data to support the manufacture of the Aurora Fuzing System for the Paveway IV Precision Guided Bomb Program." The same day, the Senate passed en bloc another 20 resolutions of disapproval prohibiting the remaining notified transfers.
The House passed S.J.Res. 36 and S.J.Res. 38 on July 17, 2019. The same day, the House also passed S.J.Res. 37 , which prohibited the transfer to the UAE of "defense articles, defense services, and technical data to support the integration, operation, training, testing, repair, and operational level maintenance" of the Maverick AGM-65 air-to-surface guided missile and several Paveway systems for use on a number of Emirati-operated aircraft. The resolution also prohibited the transfer of a number of Paveway munitions to the UAE. President Donald Trump vetoed the three bills on July 24. A July 29 Senate vote failed to override these vetoes.

		Examples of AECA Resolutions of Disapproval

On October 14, 1981, the House adopted a resolution ( H.Con.Res. 194 ) objecting to President Reagan's proposed sale to Saudi Arabia of E-3A airborne warning and control system (AWACS) aircraft, Sidewinder missiles, Boeing 707 refueling aircraft, and defense articles and services related to F-15 aircraft. An October 28, 1981, Senate vote on identical legislation failed, however, after President Reagan made a series of written commitments to Congress regarding the proposed sale. Congress later enacted legislation requiring the President to certify that the commitments made in 1981 regarding the proposed sale had been met prior to the delivery of the AWACS planes (Section 127 of the International Security and Development Cooperation Act of 1985; P.L. 99-83 ).
On April 8, 1986, President Ronald Reagan formally proposed the sale to Saudi Arabia of 1,700 Sidewinder missiles, 100 Harpoon missiles, 200 Stinger missile launchers, and 600 Stinger missile reloads. On May 6, 1986, the Senate passed legislation to block these sales ( S.J.Res. 316 ) by a vote of 73-22. The House concurred with the Senate action on May 7, 1986, by passing H.J.Res. 589 by a vote of 356-62. The House then passed S.J.Res. 316 by a voice vote and (in lieu of H.J.Res. 589 ) sent it to the President. On May 21, 1986, President Reagan vetoed S.J.Res. 316 . But, in a letter that day to then-Senate Majority Leader Robert Dole, President Reagan said he would not include the controversial Stinger missiles and launchers in the sales proposal. On June 5, 1986, the Senate, by a 66-34 vote, sustained the President's veto of S.J.Res. 316 , and the sale of the Sidewinder and Harpoon missiles to Saudi Arabia proceeded.
More recently, on March 10, 2016, the Senate Foreign Relations Committee rejected a motion to discharge a joint resolution ( S.J.Res. 31 ) prohibiting the sale of several defense articles, particularly eight F-16 Block 52 aircraft. H.J.Res. 82 was the House companion bill. On May 5, 2016, a State Department spokesperson, noting congressional objections to using Foreign Military Financing funds for the aircraft, told reporters that the United States had "told the Pakistanis that they should put forward national funds for the purchase." In late May, the U.S. offer expired after Islamabad failed to submit a letter of acceptance by the required deadline.
On June 13, 2017, the Senate voted to reject a motion to discharge from the Senate Foreign Relations Committee a joint resolution ( S.J.Res. 42 ) prohibiting certain proposed defense exports to Saudi Arabia, such as "technical data, hardware, and defense services" to support the Royal Saudi Air Force's deployment of the Joint Direct Attack Munition and integration of the FMU-152A/B JPB Fuze System into several warhead types. The bill also would have prohibited the transfer of "defense articles, defense services, and technical data to support the assembly, modification, testing, training, operation, maintenance, and integration" of certain precision guided munitions for the certain Royal Saudi Air Force planes. H.J.Res 102 was the House companion bill.


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	Background

		U.S. Missions in Afghanistan

The United States currently has two primary missions in Afghanistan: the  U.S-led counterterrorism mission and the NATO-led Resolute Support  mission to train, advise, and assist the ANDSF. For U.S. purposes, both  of these missions are a part of Operation Freedom’s Sentinel,  commanded by U.S. Forces-Afghanistan. Combined Security Transition  Command-Afghanistan is the command under NATO’s Resolute Support  mission that conducts the train, advise, and assist mission in Afghanistan.  These efforts are carried out via the regional Train Advise Assist  Commands (TAACs) that collectively cover all of Afghanistan.  Specifically, Train Advise Assist Command–Air (TAAC-Air) focuses on  developing and advising the Afghan Air Force.

		The Afghanistan Security Forces Fund

The ASFF is generally a 2-year appropriation that is used to provide  assistance, with the concurrence of the Secretary of State, to the security  forces of Afghanistan, including the provision of equipment, supplies,  services, training, facility and infrastructure repair, renovation,  construction, and funding. The ASFF presently comprises four budget  activity groups: Afghan National Army, Afghan National Police, Afghan Air  Force, and Afghan Special Security Forces. Each budget activity group  includes four sub-activity groups: sustainment, infrastructure, equipment  and transportation, and training and operations. According to officials, the  training and operations sub-activity group encompasses most of CSTC- A’s efforts to train the ANDSF, including the Afghan National Army.

	DOD Processes for Identifying Afghan National Army Training Needs and Associated Funding Requirements

CSTC-A has established processes to identify capability gaps within the  ANDSF, develop and select training needed to address those gaps, and  identify associated funding requirements. To do so, CSTC-A works with  various requiring activities—partner organizations, such as the Train  Advise Assist Commands—to identify ANDSF training needs. CSTC-A  then incorporates these needs and associated funding requirements into  the ASFF budget request, typically a year or more before the training is  initiated.

		CSTC-A Works with Its Partner Organizations to Identify ANDSF Capability Gaps and Training Needs

CSTC-A has established processes to identify capability gaps within the  ANDSF, develop and select training needed to address those gaps, and  identify associated funding requirements for inclusion in ASFF budget  justification documentation. To help execute these processes, CSTC-A  has developed standard operating procedures and other guidance for  planning, resourcing, and executing the ASFF. These procedures and  other guidance include information on processes to validate training  requirements and associated resources. CSTC-A works with various  partner organizations—referred to as “requiring activities”—to identify  capability gaps and training needs for the ANDSF. Requiring activities are  the organizations that request the resourcing of ANDSF capability needs  through ASFF. They include CSTC-A, the TAACs, and other U.S. or  NATO organizations partnered with the ANDSF.
According to DOD officials, a partner organization can identify capability  gaps in a number of ways. For example, Train Advise Assist Command– Air, which develops and advises the Afghan Air Force, works with subject  matter experts from the relevant U.S. military services and other  organizations to identify potential Afghan Air Force capability gaps.
Additionally, according to DOD officials, in 2015 DOD tasked the MITRE  Corporation to conduct a study of Afghan Air Force capabilities.  According to DOD officials, MITRE’s November 2015 study highlighted  capability gaps within the cadre of Afghan Air Force fixed- and rotary-wing  pilots and maintenance personnel. Further, officials stated that the study  concluded that the training of additional pilots constituted a critical need  for the Afghan Air Force.
Once a capability gap has been identified, the requiring activity develops  potential courses of action to address it, such as proposals to train the  ANDSF to develop needed capabilities. Through CSTC-A’s procedures  these proposals are validated, along with associated resources. The  validation process is intended to ensure that a transparent and  accountable process is followed when allocating ASFF resources to  emerging requirements.
For example, as part of the fiscal year 2018 budget process, TAAC-Air  identified a capability gap within the Afghan Air Force and then worked  with various subject matter experts to develop courses of action to  address the gap. Specifically, TAAC-Air worked with personnel from the  Program Executive Office for Simulation, Training, and Instrumentation  (PEO-STRI), which provides simulation, training, and testing solutions for  the Army and joint community. Subject matter experts from PEO-STRI  provided details regarding various options for addressing the capability  gap. PEO-STRI officials noted that they also provided cost estimates for  delivering the solution based on historical data. According to PEO-STRI  officials, this was a highly interactive process entailing frequent formal  and informal discussions among multiple organizations to develop the  most effective solution for pilot training for the Afghan Air Force. Once  details and cost estimates were solidified, the requirement owner  presented them to a Council of Colonels, an officer group responsible for  requirement validation for training needs, among other capability needs.  The requirement was then taken to the General Officer Steering  Committee, which votes to validate the requirement and approve the  proposed solution.

		CSTC-A Process Incorporates Validated Training Needs into ASFF Budget Request

CSTC-A’s process incorporates validated training needs and their  associated funding requirements as part of DOD’s annual budget  process. DOD’s planning, programming, budgeting, and execution  (PPBE) process, which is governed in part by DOD Directive 7045.14,  along with other DOD guidance, is conducted under four phases (see  figure 1). Specifically, DOD uses the PPBE process to determine and  prioritize requirements and allocate resources to provide capabilities  necessary to accomplish the department’s missions. According to  officials, as part of this process, CSTC-A provides inputs, including  training requirements and associated funding needs, and later works with  various contracting commands to execute appropriated funds.
In the case of ASFF, CSTC-A’s guidance indicates that a proposed  activity (for example, fixed-wing pilot training classes) should generally be  included in the ASFF budget justification book in order to later use ASFF  funds for that activity. To do so, CSTC-A’s Program and Analysis  Division develops and incorporates the requests from requirement owners  for funding for the operations, sustainment, and development of the  ANDSF into the ASFF budget request and associated budget justification  materials. The Program and Analysis Division works with the  requirement owners to write a narrative describing their proposed activity  and associated cost estimate for delivering the activity. The division then  works with the OUSD-Comptroller to consolidate requirements for all  budget activities and sub-activity groups into a single draft budget  justification book.
One significant aspect of this process is that many of the key decisions,  and associated cost assumptions, on how CSTC-A and TAAC-Air (in the  case of Afghan pilot training) intend to carry out ASFF training efforts are  proposed 18-24 months before the training will occur. For example, as  shown in figure 2, preparation of the ASFF budget justification book for  fiscal year 2019 began in the summer of 2017. In turn, the budget  justification book was subsequently submitted to the OUSD-Comptroller  in December 2017, and funds were not available for use until the start of  the new fiscal year, in October 2018.
These time frames can present a challenge in developing accurate cost  estimates for CSTC-A, given that situations in Afghanistan can change  significantly in the time between CSTC-A’s developing a proposed  capability requirement and associated cost estimate for inclusion in the  ASFF budget justification book and the execution of that requirement,  according to officials. If conditions change, officials noted, the proposed  actions and associated cost estimates for a given requirement may no  longer be appropriate or accurate. For example, the Special Inspector  General for Afghanistan Reconstruction reported in January 2019 that  CTSC-A may have overestimated the cost for UH-60 Blackhawk rotary- wing pilot training by as much as $1 billion over a 7-year period— attributing the overestimation mainly to unrealistic assumptions regarding  student or pilot attrition and the English language program.
In the case of initial entry fixed-wing pilot training classes, CSTC-A’s  original proposal, as reflected in its budget justification book was to have  classes of 25 students. However, during the implementation of this  training, the class size fell to 12 students because not all 25 students  achieved the required English language proficiency, and one student had  dropped out of the program. Consequently, the resulting class was half  the projected size underlying the estimated funding requirement, which  resulted in funds being excess to CSTC-A’s actual need. CSTC-A officials  acknowledged the challenges they faced in filling classes with the  expected number of students, adding that they had purposely built in  significant flexibility in the training approach to be able to adjust to the  realities of the ANDSF’s ability to generate qualified students. According  to CSTC-A officials, the number of English-proficient Afghan student  candidates varies from year to year.
For cases like these, where CSTC-A requested more funding than it  ultimately obligated, in some circumstances DOD may reprogram the  unobligated amounts within the same appropriation account, or may  transfer it to other appropriation accounts, if there is authority to do so.  Otherwise, time-limited appropriations, such as the ASFF, expire after  their period of availability and are unavailable for new obligations.  According to CSTC-A officials, in cases where they have unobligated  funding due to changing conditions such as smaller-than-expected class  sizes, they try to reprogram that money for related needs within the same  sub-activity group in the ASFF budget prior to expiration. For example, if  certain Afghan Air Force training costs are lower than expected, the  money could be reprogrammed for other efforts within the Afghan Air  Force training and operations sub-activity group.

	CSTC-A’s Process for Developing and Overseeing ASFF Training Contracts

ASFF-funded training contracts for the ANDSF are developed and  executed through a process that is modeled on the U.S. government’s  foreign military sales process. Until April 2019, ASFF-funded orders to  train the Afghan National Army were generally filled under a contract with  a single provider. At that point, DOD began to transition to an approach  using several contracts, including one with multiple providers.

		ASFF-Funded Training Contracts Are Developed and Executed Under a Process Modeled on the Foreign Military Sales Program

ASFF-funded training contracts are developed and executed under a  process modeled on the U.S. government’s foreign military sales (FMS)  program, referred to as “pseudo-FMS.” As indicated by CSTC-A  guidance, these pseudo-FMS procurements are FMS-like cases and use  U.S. funds to purchase items, services, and training for ANDSF capability  requirements. The process is outlined in the Security Assistance  Management Manual, which provides DOD-wide guidance to DOD  components engaged in the management or implementation of DOD  security assistance and security cooperation programs over which the  Defense Security Cooperation Agency has responsibility. We have  previously reported that while the many steps of the process used for  FMS and pseudo-FMS cases can be grouped in different ways, they fall  into five general phases: assistance request, agreement development,  acquisition, delivery, and case closure.
First, CSTC-A works with the resource coordinator, requirement owner,  and other elements to develop a Memorandum of Request, and it submits  that memorandum to the implementing agency and the Defense Security  Cooperation Agency, requesting assistance to contract for ANDSF needs  using ASFF funds. For example, when developing the Memorandum of  Request for initial entry fixed-wing pilot training, CSTC-A worked with  TAAC-Air, the requirement owner, to identify details regarding the agreed- upon training solution. Officials noted that CSTC-A also worked with the  subject matter experts from PEO-STRI to develop the independent  government cost estimate.
Second, as described by officials, the agreement development phase  begins with the Defense Security Cooperation Agency’s receiving the  Memorandum of Request. The Defense Security Cooperation Agency  opens a case and assigns it to an implementing agency—that is, the  military department or defense agency responsible for overall  management of the actions that will result in the delivery of materials or  services. According to contracting officials, the implementing agency for  training foreign military ground and air forces outside of the United  States—such as the Afghan National Army—is the U.S. Army Security  Assistance Command. The implementing agency then works with the  appropriate Program Executive Office to develop the Letter of Offer and  Acceptance—which serves to document the transfer of articles and  services to the U.S. government requesting authority. For example, for  the out-of-country fixed-wing pilot training requirement, contractors  delivered the training, and the appropriate implementing agency was  PEO-STRI, according to officials. Once the Letter of Offer and  Acceptance is completed and signed by the implementing and requesting  agencies, it is reviewed and approved by the Defense Security  Cooperation Agency and Department of State, as appropriate.
Third, the Program Executive Office works with the appropriate  contracting command to acquire the requested defense goods or services  as part of the acquisition phase. According to contracting officials, the  contracting command solicits and receives bids from contractors and  selects the best value option (including price plus deliverables). Fourth,  the contractor delivers the required good or service. According to officials,  the relevant Program Executive Office is responsible for monitoring the  contractor’s performance by ensuring compliance with applicable contract  clauses. Fifth, following contract completion and payment of outstanding  obligations, the implementing agency initiates case closure with the  Defense Security Cooperation Agency.

		Training Requirements for the Afghan National Army Were Generally Provided by a Single Vendor Prior to April 2019, but Are Now Provided by Multiple Vendors

Prior to April 2019, ASFF-funded training requirements for the Afghan  National Army, including out-of-country fixed- wing pilot training, were  generally executed under a single award indefinite delivery, indefinite  quantity contract known as the Warfighter Field Operations Customer  Support (WFF) contract. The WFF contract provided integrated training  system sustainment and training services world-wide for the U.S. Army,  Marine Corps, Navy, Air Force, and Special Operations Command.  According to Army contracting officials, WFF was the most expedient way  to contract for various types of training for the Afghan National Army due  to the contract’s broad scope and $11.2 billion ceiling. These officials said  it provided the capacity and flexibility needed to fulfill the Afghan National  Army’s requirements and time frames in a streamlined way because the  competition and award process had already occurred, enabling officials to  move directly to awarding task orders for support.
However, while the single award indefinite delivery, indefinite quantity  contract streamlined the process for contracting ANDSF training, it limited  DOD’s ability to negotiate some costs. According to contracting officials,  only certain types of costs could be negotiated, such as those associated  with housing, travel, and the number of advisors supporting the training.  The officials stated that other costs were established as a per-unit cost at  the time of the contract award. In addition, various administrative fees  were established when the WFF contract was awarded in 2007 and could  not be renegotiated, according to contracting officials. As a result, any  task orders under this contract, including those to train the Afghan  National Army, had to include these administrative fees and established  labor wages.
To illustrate the various costs associated with the Afghan Air Force  training program, we reviewed documentation associated with training  provided under the WFF contract. One training program cost $12.1 million  for the delivery of an 86-week fixed-wing pilot training course (from  February 2018 through September 2019) for 13 Afghan Air Force  students at the Fujairah Aviation Academy in the United Arab Emirates.  The pilot training was conducted by contractors and comprised aviation  English language training, theory of flight, basic and advanced instrument  ground school, advanced flight instrumentation, and simulation training for  the Afghan Air Force Cessna C-208 Caravan aircraft. The $12.1 million  total included amounts paid to the contractor and administrative charges  to cover the costs of entities within the U.S. government. The costs  associated with the training are shown in figure 3 below.
The largest cost factor in this task order was the cost of the flight school  itself, which accounted for 68.4 percent (or $8.2 million) of the total cost,  according to contracting officials. The flight school included ground  school, simulation, advanced instruments, and flying hours training, and it  represented a cost per each of the 13 students who actually attended the  training. The flight school also included the cost of housing, electronic  books / manuals, and campus security, some of which costs were  negotiable, according to officials. Other costs, such as the Defense  Security Cooperation Agency 3.5 percent surcharge and contract  administration services 1.2 percent surcharge, were established based  upon rates current at the time of the letter of offer and acceptance.  According to officials, the contractor’s profit was established at the time of  award of the contract in 2007. Officials stated that the costs that could be  negotiated were limited and included costs associated with travel,  lodging, and adding more advisors to augment the training. According to  contracting officials, these limitations were not unique to this ASFF  training but applied broadly to all ASFF training task orders they executed  under WFF.
In 2018 DOD decided to replace WFF, which was nearing expiration, with  a series of new contracts. DOD has begun to transition work previously  performed under WFF to these new contracts, the first of which was  awarded in 2018. According to contracting officials, ASFF-funded training  efforts are expected to be executed primarily under two of the new  contracts – the Enterprise Training Services Contract and the Training,  Instructor Operator Support Services Contract. The Enterprise Training  Services Contract is a multiple award indefinite delivery, indefinite  quantity contract with a total contract ceiling of $2.4 billion that was  awarded to multiple contractors in June 2018. According to officials, the  Training, Instructor Operator Support Services Contract is a single award  indefinite delivery, indefinite quantity contract with a ceiling of $197.6  million that was awarded in July 2018.
According to Army contracting officials, the contracting process for ASFF  training services will include competition among multiple contractors for  each task order under the Enterprise Training Services Contract. Army  contracting officials stated that under a multiple-award contract, each  contract holder is to be provided a fair opportunity to compete for each  task order, in part to use competition to ensure that the proposed prices  are fair and reasonable. According to Army contracting officials, the  Enterprise Training Services Contract also affords the opportunity to  negotiate more elements than previously under the WFF contract, such  as labor rates or travel costs associated with training. The first training  task order under the Enterprise Training Services Contract in support of  Afghan forces was issued in April 2019. As this task order has only  recently been issued, it is too early for us to comment on the efficacy of  these contracts.

	DOD Processes to Provide Visibility over ASFF-Funded Training Contracts

DOD has varying degrees of visibility over ASFF-funded training  contracts. At the broadest level, OUSD-Comptroller and contracting  officials stated that they have visibility of the overall execution of the  ASFF budget, including funding associated with Afghan National Army  training. For example, OUSD-Comptroller tracks and reports ASFF  obligations and disbursements in monthly status-of-funds reports, known  as Defense Financial and Accounting Services 1002 Reports. In addition,  the Special Inspector General for Afghanistan Reconstruction tracks and  reports ASFF obligations and disbursements via its Overseas  Contingency Operations quarterly reports to Congress.
At the individual contract level, the military services’ contracting  commands, such as PEO-STRI and Army Contracting Command,  develop and maintain contract files for individual ASFF-funded contracts  and task orders. However, according to officials, DOD does not have a  centralized system or reporting mechanism for tracking all ASFF training  contracts, because the systems used by the services for managing  funding and those used for contract management do not interface with  each other. According to OUSD-Comptroller officials, the systems used  for financial management were not designed or intended to identify ASFF  funds specifically obligated for training contracts because there is no  requirement for them to do so.
Officials said that consequently, in the single instance in which they have  had to develop a comprehensive list of all ASFF-funded training  contracts, they had to work with the contracting commands at the  respective military services to gather this information. For example, to  respond to congressional direction related to contracts funded with ASFF,  OUSD-Policy contacted all of the military services to request a list of all  training contracts funded through the ASFF under the respective services’  responsibilities, according to OUSD officials. In turn, Army contracting  officials stated that they identified the requested information by using the  lines of accounting fields in their contract management systems to identify  those training contracts funded with ASFF. OUSD-Policy officials  provided us with the resulting list of 40 contracts and task orders, totaling  over $483 million in estimated contract value, but they acknowledged that  the list was likely incomplete.
OUSD-Policy officials who compiled the list of training contracts told us  that the precision of the list was affected by inconsistent interpretations  among the services of what constitutes a training contract. According to  these officials, training for the Afghan National Army can also occur under  procurement or maintenance contracts that have embedded training  components. For example, according to officials, the Army’s National  Maintenance Strategy contract provides logistic support to the Afghan  National Army and includes a training component. Similarly, the Navy’s  ASFF-funded ScanEagle unmanned aerial vehicle reconnaissance  procurement contract includes a training component. Because these  contracts are not primarily training-oriented, according to contracting  officials, they were not identified under the training and operations  subactivity group in the ASFF budget, and therefore would not be easily  identifiable as ASFF training contracts. Despite these limitations, DOD  officials stated that, given their existing systems and processes and their  ability to reach out to contracting officials to obtain additional data when  needed, they believe they have sufficient tools to identify most ASFF- funded training contracts. Additionally, DOD officials stated that the  congressional direction associated with ASFF-funded training was a one- time request, not a recurring task.

	Agency Comments

We provided a draft of this report to DOD, and DOD responded that it  would not be providing formal comments. DOD also provided technical  comments, which we incorporated as appropriate.
We are sending copies of this report to the appropriate congressional  committees and to the Secretary of Defense. In addition, the report is  available at no charge on our website at http://www.gao.gov.
If you or your staff have any questions about this report, please contact  Cary Russell at (202) 512-5431 or russellc@gao.gov. Contact points for  our Offices of Congressional Relations and Public Affairs may be found  on the last page of this report. Key contributors to this report are listed in  the appendix.

Appendix I: GAO Contact and Staff Acknowledgments

	GAO Contact

	Staff Acknowledgments

In addition to the contact named above, James A. Reynolds, Assistant  Director, and Jerome Brown, William Chatlos, Alfonso Garcia, Steve  Pruitt, Michael Shaughnessy, McKenna Stahl, and Cheryl Weissman  made key contributions to this report.