Statement of Attorney General Merrick B. Garland on the Justice Department’s Implementation of the Executive Order on Promoting Competition in the American Economy

Attorney General Merrick B. Garland made the following statement after the President’s signing of the Executive Order on Promoting Competition in the American Economy:

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Specifically, of the 22 programs that were actively using a register to manage program risks, DOD rated nine programs as low risk, 12 as medium risk, and one as high risk. In contrast, GAO rated seven as low risk, 12 as medium risk, and three as high risk. In total, GAO found 10 programs for which its numerical assessments of program risk reflected greater risk than reported by DOD, while DOD had three programs with greater reported risk than GAO. DOD officials noted that differences in risk levels might be associated with a variety of factors, including different risk assessment approaches. However, the differences in risk level GAO identified highlight the need for DOD to ensure that it is accurately reporting program risks. Until the department does so, oversight of some programs could be limited by overly optimistic risk perspectives. As of December 2020, program officials for the 22 major DOD business IT programs that were actively developing software reported using approaches that may help to limit cost and schedule risks. (See table.) Selected Software Development and Cybersecurity Approaches That May Limit Risks and Number of Major DOD Business IT Programs That Reported Using the Approach Software development and cybersecurity approaches that may limit risk Number of programs that reported using the approach Using off-the-shelf software 19 of 22 Implementing continuous iterative software development 18 of 22 Delivering software at least every 6 monthsa 16 of 22 Developing or planning to develop a cybersecurity strategy 21 of 22 Conducting developmental cybersecurity testing 16 of 22 Conducting operational cybersecurity testing 15 of 22 Source: GAO analysis of Department of Defense questionnaire responses. | GAO-21-351aThe Defense Innovation Board encourages more frequent delivery of working software to users for Agile and DevOps practices. Program officials also reported facing a variety of software development challenges while implementing these approaches. These included difficulties finding and hiring staff, transitioning from waterfall to Agile software development, and managing technical environments. DOD's continued efforts to address these challenges will be critical to the department's implementation of modern software development approaches. DOD has also made organizational and policy changes intended to improve the management of its IT acquisitions, such as taking steps to implement Agile software development and improve data transparency. In addition, to address statutory requirements, DOD has taken steps to remove the department's chief management officer (CMO) position. However, the department had not yet sufficiently implemented these changes. Officials from many of the 18 programs GAO assessed that reported using Agile development reported that DOD had implemented activities associated with Agile transition best practices to only some or little to no extent, indicating that the department had not sufficiently implemented best practices. For example, 12 of the 18 programs reported that DOD's life-cycle activities only supported Agile methods to some or little to no extent. Program officials also reported challenges associated with implementing Agile software development. The department has a variety of efforts underway to help with its implementation of Agile software development. DOD officials stated that the department's transition to Agile will take years and will require sustained engagement throughout DOD. In addition, DOD has taken steps aimed at improving the sharing and transparency of data it uses to monitor its acquisitions. According to a November 2020 proposal from the Office of the Under Secretary for Acquisition and Sustainment, DOD officials are to develop data strategies and metrics to assess performance for the department's acquisition pathways. However, as of February 2021, DOD did not have data strategies and had not finalized metrics for the two pathways associated with the programs discussed in this report. Officials said they were working with DOD programs and components to finalize initial pathway metrics. They stated that they plan to implement them in fiscal year 2021 and continue to refine and adjust them over the coming years. Without important data from acquistion pathways and systems, DOD risks not having timely quantitative insight into program performance, including its acquisition reform efforts. Finally, DOD's CMO position was eliminated by a statute enacted in January 2021. This position was responsible for key efforts associated with the department's business systems modernization, which has been on GAO's High Risk List since 1995. DOD plans to take steps to address the uncertainty associated with the recent elimination of the position. Why GAO Did This Study For fiscal year 2021, DOD requested approximately $37.7 billion for IT investments. These investments included major business IT programs, which are intended to help the department carry out key business functions, such as financial management and health care. The National Defense Authorization Act for Fiscal Year 2019 included a provision for GAO to assess selected IT programs annually through March 2023. GAO's objectives for this review were to (1) summarize DOD's reported performance of its portfolio of IT acquisition programs and the reasons for this performance; (2) evaluate DOD's assessments of program risks; (3) summarize DOD's approaches to software development and cybersecurity and identify associated challenges; and (4) evaluate how selected organizational and policy changes could affect IT acquisitions. To address these objectives, GAO selected 29 major business IT programs that DOD reported to the federal IT Dashboard (a public website that includes information on the performance of major IT investments) as of September 2020. GAO reviewed planned expenditures for these programs, from fiscal years 2019 through 2022, as reported in the department's FY 2021 budget request. It also aggregated program office responses to a GAO questionnaire that requested information about cost and schedule changes that occurred since January 2019 and the early impacts of COVID-19. GAO also analyzed the risks of the 22 programs that were actively using central repositories known as risk registers to manage program risks. GAO used these registers to create program risk ratings, and then compared its ratings to those of the DOD chief information officer (CIO). In addition, GAO aggregated DOD program office responses to the questionnaire that requested information about the software and cybersecurity practices used by 22 of the 29 IT programs that were actively developing software. GAO compared the responses to relevant guidance and leading practices. GAO reviewed selected IT-related organizational and policy changes and reviewed reports and documentation related to the effects of these changes on IT acquisitions. GAO also aggregated program office responses to the questionnaire that requested information about DOD's implementation of these changes. This included information on DOD's implementation of best practices as part of its efforts to implement Agile software development. GAO met with relevant DOD officials to discuss each of the topics addressed in this report.
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    In U.S GAO News
    GAO found that the Patient-Centered Outcomes Research Institute (PCORI)—a federally funded, nonprofit corporation—and the Department of Health and Human Services (HHS) have continued to perform comparative clinical effectiveness research (CER) activities required by law since our prior report issued in 2015. CER evaluates and compares health outcomes, risks, and benefits of medical treatments, services, or items. The requirements direct PCORI and HHS to, among other things, fund CER and disseminate and facilitate the implementation of CER findings. GAO's analysis of PCORI and HHS documents show that they allocated a total of about $3.6 billion for CER activities and program support during fiscal years 2010 through 2019 from the Patient Centered Outcomes Research Trust Fund (Trust Fund). Specifically, PCORI allocated about $2 billion for research awards and another $542 million for other awards, to be paid over multiple years. HHS allocated about $598 million for activities such as the dissemination and implementation of CER findings. PCORI and HHS also allocated about $470 million for program support. PCORI and HHS Allocations for Comparative Clinical Effectiveness Research (CER) Activities, Fiscal Years 2010 through 2019 aTotals may not add up due to rounding. bPCORI and HHS allocated $457 million and $13 million for program support, respectively. PCORI assessed the effectiveness of its activities using performance measures and targets. Since fiscal year 2017, when early CER projects were completed, PCORI officials reported that the institute met its performance targets, such as an increased number of research citations of its CER findings in news and online sources. HHS described accomplishments or assessed the effectiveness of its dissemination and implementation activities. PCORI and HHS officials told GAO they are planning comprehensive evaluations of their CER dissemination and implementation activities as part of their strategic plans for the next 10 years. The 2010 Patient Protection and Affordable Care Act (PPACA) authorized establishment of PCORI to conduct CER and improve its quality and relevance. PPACA also established new requirements for HHS to, among other things, disseminate findings from federally funded CER and coordinate federal programs to build data capacity for this research. To fund CER activities, PPACA established the Trust Fund, which provided a total of about $3.6 billion to PCORI and HHS for CER activities during fiscal years 2010 through 2019. The Further Consolidated Appropriations Act, 2020, added new CER requirements and extended funding at similar levels through fiscal year 2029. PPACA and the Appropriations Act 2020 included provisions that GAO review PCORI and HHS's CER activities. This report describes (1) the CER activities PCORI and HHS carried out to meet legislative requirements, (2) how PCORI and HHS allocated funding to those CER activities, and (3) PCORI and HHS efforts to evaluate the effectiveness of their CER dissemination and implementation activities, such as changes in medical practice. GAO reviewed legislative requirements and PCORI and HHS documentation and data for fiscal years 2010-2019. GAO also interviewed PCORI and HHS officials and obtained information from nine selected stakeholder groups that were familiar with PCORI's or HHS's CER activities. These groups included payer, provider, and patient organizations. GAO incorporated technical comments from PCORI and HHS as appropriate. For more information, contact John Dicken at (202) 512-7114 or dickenj@gao.gov.
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    In U.S GAO News
    The Department of Veterans Affairs' (VA) policy on use of force states that police officers must use the minimal level of force that is reasonably necessary to gain control of a situation and should only utilize physical control methods on an individual when the force is justified by the individual's actions. To guide officers, VA developed a Use of Force Continuum Scale to define and clarify the categories of force that can be used. Categories of Force on the VA’s Use of Force Continuum Scale According to VA policy, all police officers must receive training on the VA's use of force policy when hired and biannually thereafter. Officers are trained—through classroom lectures and scenarios that emphasize effective communication techniques—to use the minimal level of force to deescalate a situation. Officers record use of force incidents electronically and the chief of police decides which, if any, use of force incidents need to be investigated in accordance with VA guidance. Chiefs of Police at the six facilities GAO visited conducted investigations in a similar manner, by reviewing evidence and comparing an officer's action with the VA's use of force policy to determine whether actions were justified. While most investigations are conducted at the local level, VA headquarters may also run investigations for certain incidents, such as when it receives a complaint against an officer. VA police officers record incidents in a database, Report Executive, but GAO's analysis indicates that VA data on use of force incidents are not sufficiently complete and accurate for reporting numbers or trends at medical centers nationwide. For example, GAO found that 176 out of 1,214 use of force incident reports did not include the specific type of force used. Further, Report Executive does not track incidents by individual medical centers. By addressing these limitations, VA can more effectively monitor use of force trends by type of force or medical facility, among other variables, to understand the VA's use of force incidents nationwide. GAO also found that VA does not systematically collect or analyze use of force investigation findings from local medical centers, limiting its ability to provide effective oversight. Specifically, there is no policy requiring Chiefs of Police to submit all investigations on use of force to VA headquarters, and VA does not have a database designed to collect and analyze data on use of force investigations. Collecting and analyzing such data nationwide would allow VA to better assess the impact of its deescalation policies and improve the agency's oversight efforts. About 5,000 VA police officers are responsible for securing and protecting 138 VA medical centers across the country. These officers are authorized to investigate crimes, make arrests, and carry firearms. The Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017 included a provision that GAO assess aspects of the VA police services. This report addresses (1) what the VA's policies are on the use of force by police officers at medical centers, and what training officers receive on the use of force; (2) how VA records and investigates use of force incidents at medical centers; and (3) the extent to which VA sufficiently collects and analyzes use of force data at medical centers. To address these objectives, GAO reviewed VA policies, procedures, and training materials on the use of force and interviewed VA officials at headquarters and six local medical centers, selected to represent varying size and locations. GAO reviewed VA data on use of force incidents recorded from May 10, 2019, through May 10, 2020—the most recent full year data were available. GAO is making five recommendations, including that VA improve the completeness and accuracy of its use of force data; implement a tool to analyze use of force incidents at medical centers nationwide; ensure that medical centers submit all use of force investigations to VA headquarters; and analyze the use of force investigation data. The VA concurred with each of GAO's recommendations. For more information, contact Gretta L. Goodwin at (202) 512-8777 or goodwing@gao.gov.
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  • Priority Open Recommendations: Department of the Treasury
    In U.S GAO News
    What GAO Found In April 2020, GAO identified 31 priority recommendations for the Department of the Treasury. Since then, Treasury has implemented 14 of those recommendations by, among other things, developing a cybersecurity risk management strategy that includes key elements identified in federal guidance and by establishing a process for conducting an organization-wide cybersecurity risk assessment. In June 2021, GAO identified 4 additional priority recommendations for Treasury, bringing the total number to 21. These recommendations involve the following areas: Improving payment integrity Improving cybersecurity Improving information technology workforce planning Modernizing the U.S. financial regulatory system Improving federal financial management ( Evaluating the performance and effectiveness of tax expenditures Full implementation of these open recommendations could significantly improve Treasury's operations. Why GAO Did This Study Priority open recommendations are the GAO recommendations that warrant priority attention from heads of key departments or agencies because their implementation could save large amounts of money; improve congressional and/or executive branch decision-making on major issues; eliminate mismanagement, fraud, and abuse; or ensure that programs comply with laws and funds are legally spent, among other benefits. Since 2015 GAO has sent letters to selected agencies to highlight the importance of implementing such recommendations. For more information, contact Michelle Sager at (202) 512-6806 or sagerm@gao.gov.
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  • Military Housing: DOD Has Taken Key Steps to Strengthen Oversight, but More Action Is Needed in Some Areas
    In U.S GAO News
    In 1996 Congress provided DOD with authorities enabling it to obtain private-sector financing and management to repair, renovate, construct, and operate military housing. DOD has since privatized about 99 percent of its domestic housing. The Department of Defense (DOD) has made progress in addressing weaknesses in its privatized housing program, and GAO has identified additional opportunities to strengthen the program. GAO reported in March 2020 on DOD's oversight and its role in the management of privatized housing. Specifically, GAO found that 1) the military departments conducted some oversight of the physical condition of privatized housing, but some efforts were limited in scope; 2) the military departments used performance metrics to monitor private developers, but the metrics did not provide meaningful information on the condition of housing; 3) the military departments and private developers collected maintenance data on homes, but these data were not captured reliably or consistently, and 4) DOD provided reports to Congress on the status of privatized housing, but some data in these reports were unreliable, leading to misleading results. GAO made 12 recommendations, including that DOD take steps to improve housing condition oversight, performance indicators, maintenance data, and resident satisfaction reporting. DOD generally concurred with the recommendations. As of February 2021, DOD fully implemented 5 recommendations and partially implemented 7 recommendations. DOD should also take action to improve the process for setting basic allowance for housing (BAH)—a key source of revenue for privatized housing projects. In January 2021, GAO reported on DOD's process to determine BAH. GAO found that DOD has not always collected rental data on the minimum number of rental units needed to estimate the total housing cost for certain locations and housing types. Until DOD develops ways to increase its sample size, it will risk providing housing cost compensation that does not accurately represent the cost of suitable housing for servicemembers. GAO recommended that DOD review its methodology to increase sample sizes. GAO has also determined, in a report to be issued this week, that DOD should improve oversight of privatized housing property insurance and natural disaster recovery. GAO assessed the extent to which the military departments and the Office of the Secretary of Defense exercise oversight of their projects' insurance coverage. GAO found that the military departments have exercised insufficient oversight, and that the Office of the Secretary of Defense has not regularly monitored the military departments' implementation of insurance requirements. Without establishing procedures for timely and documented reviews, the military departments cannot be assured that the projects are complying with insurance requirements and assuming a proper balance of risk and cost. The draft of this report, which GAO provided to DOD for official comment, included 9 recommendations, 2 of which DOD addressed in January 2021 by issuing policy updates. The final report's 7 remaining recommendations, including that the military departments update their respective insurance review oversight procedures, will help strengthen DOD's oversight of privatized housing, once implemented. DOD concurred with all of the recommendations. Congress enacted the Military Housing Privatization Initiative (MHPI) in 1996 to improve the quality of housing for servicemembers. DOD is responsible for general oversight of privatized housing projects. Private-sector developers are responsible for the ownership, construction, renovation, maintenance, and repair of about 99 percent of military housing in the United States. GAO has conducted a series of reviews of MHPI, following reports of hazards (such as mold) in homes, questions about DOD's process to determine the basic allowance for housing rates, which is a key revenue source for privatized housing, and concerns about how DOD ensures appropriate property insurance for privatized housing projects impacted by severe weather. This statement summarizes 1) steps DOD has taken to strengthen oversight and management of its privatized housing program, and work remaining; 2) actions needed to improve DOD's BAH process; and 3) actions needed to enhance DOD's oversight of privatized housing property insurance. The statement summarizes two of GAO's prior reports, and a report to be issued, related to privatized housing. For this statement, GAO reviewed prior reports, collected information on recommendation implementation, and interviewed DOD officials. In prior reports, GAO recommended that DOD improve oversight of housing conditions; review its process for determining basic allowance for housing rates; and that the military departments update their housing insurance review oversight procedures. For more information, contact Elizabeth A. Field at (202) 512-2775 or fielde1@gao.gov.
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  • Higher Education: IRS and Education Could Better Address Risks Associated with Some For-Profit College Conversions
    In U.S GAO News
    GAO identified 59 for-profit college conversions that occurred from January 2011 through August 2020, almost all of which involved the college's sale to a tax-exempt organization. In about one-third of the conversions, GAO found that former owners or other officials were insiders to the conversion—for example, by creating the tax-exempt organization that purchased the college or retaining the presidency of the college after its sale (see figure). While leadership continuity can benefit a college, insider involvement in a conversion poses a risk that insiders may improperly benefit—for example, by influencing the tax-exempt purchaser to pay more for the college than it is worth. Once a conversion has ended a college's for-profit ownership and transferred ownership to an organization the Internal Revenue Service (IRS) recognizes as tax-exempt, the college must seek Department of Education (Education) approval to participate in federal student aid programs as a nonprofit college. Since January 2011, Education has approved 35 colleges as nonprofit colleges and denied two; nine are under review and 13 closed prior to Education reaching a decision. Figure: Example of a For-Profit College Conversion with Officials in Insider Roles IRS guidance directs staff to closely scrutinize whether significant transactions with insiders reported by an applicant for tax-exempt status will exceed fair-market value and improperly benefit insiders. If an application contains insufficient information to make that assessment, guidance says that staff may need to request additional information. In two of 11 planned or final conversions involving insiders that were disclosed in an application, GAO found that IRS approved the application without certain information, such as the college's planned purchase price or an appraisal report estimating the college's value. Without such information, IRS staff could not assess whether the price was inflated to improperly benefit insiders, which would be grounds to deny the application. If IRS staff do not consistently apply guidance, they may miss indications of improper benefit. Education has strengthened its reviews of for-profit college applications for nonprofit status, but it does not monitor newly converted colleges to assess ongoing risk of improper benefit. In two of three cases GAO reviewed in depth, college financial statements disclosed transactions with insiders that could indicate the risk of improper benefit. Education officials agreed that they could assess this risk through its audited financial statement review process and could develop procedures to do so. Until Education develops and implements such procedures for new conversions, potential improper benefit may go undetected. A for-profit college may convert to nonprofit status for a variety of reasons, such as wanting to align its status and mission. However, in some cases, former owners or other insiders could improperly benefit from the conversion, which is impermissible under the Internal Revenue Code and Higher Education Act of 1965, as amended. GAO was asked to examine for-profit college conversions. This report reviews what is known about insider involvement in conversions and to what extent IRS and Education identify and respond to the risk of improper benefit. GAO identified converted for-profit colleges and reviewed their public IRS filings. GAO also examined IRS and Education processes for overseeing conversions, interviewed agency officials, and reviewed federal laws, regulations and agency guidance. GAO selected five case study colleges based on certain risk factors, obtained information from college officials, and reviewed their audited financial statements. In three cases, GAO also reviewed Education case files. Because of the focus on IRS and Education oversight, GAO did not audit any college in this review to determine whether its conversion improperly benefitted insiders. GAO is making three recommendations, including that IRS assess and improve conversion application reviews and that Education develop and implement procedures to monitor newly converted colleges. IRS said it will assess its review process and will evaluate GAO's other recommendation, as discussed in the report. Education agreed with GAO's recommendation. For more information, contact Melissa Emrey-Arras at (617) 788-0534 or emreyarrasm@gao.gov.
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