Thornberry’s Buying Bill Adds Bureaucracy, Helps Biz With IP

CAPITOL HILL: Rep. Mac Thornberrry’s proposed legislation to help fix Pentagon procurement was unveiled with a background press briefing by staff members, who touted its benefits of “transparency” and “accountability.” But some staff believe the chairman of the House Armed Services Committee’s legislation may not be as exciting or as fundamental as was said in the briefing. In fact, the bill actually introduces more bureaucracy, they argue.

“The big area of disagreement is the overall weight of new micromanagement and bureaucracy the bill includes. For example, the DoD already has authority and the ability to do open systems designs and prototyping. On open systems, the bill mandates a ‘one size fits all’ approach to weapon system design, in statute, rather than leaving the services flexibility to use open systems when they need to, and not use it when they don’t,” one Hill staffer writes.

“Open systems isn’t a panacea or a magic wand; it is simply one design approach that isn’t applicable in all cases. By adding mandates and certifications regarding open system design, it will just clog up an already painfully slow acquisition process,” the aide predicts.

The Defense Department has pressed hard for new authorities to allow them to build prototypes to test technology in the early stages of a weapon system, and Thornberry’s bill proposes what it casts as new authorities. While the proposed bill would apply only to “component prototypes” and not the entire weapon, the staffer argues that the Pentagon, “already has lots of authorities, and funding, to do prototypes.” Some of those are enshrined already in the most recent National Defense Authorization Act but those “haven’t even been implemented yet.” Thornberry’s bill places new restrictions on what the Defense Department is already doing by placing a time limit of three years and funding limits of a pretty paltry $5 million, though it does grant the Defense Secretary the authority to grant a waiver of up to $25 million. It also mandates a new “board” in each military service to supervise component prototypes.

The bill requires the Pentagon set binding unit cost and schedule targets at Milestone A, not the later Milestone B. This, the staffer argues, sets up a “double milestone” requirement which means the Office of Secretary’s Defense acquisition shop and CAPE cost estimators get a new “veto” on milestones that are now “the purview of the service acquisition executives. In any case, how can you set a binding cost and schedule target at MS A when the system hasn’t even begun detailed design? Any such targets will be pure guesses that will now require significant bureaucracy to overcome when they prove wrong.”

Also, Milestone B is when a program’s Nunn-McCurdy cost benchmark is set. If binding cost and schedule targets are set at Milestone A, that could muddy the waters for those tracking a program’s costs and schedule, the Hill staffer believes.

The bill also deals with an issue that greatly agitates both small businesses and Silicon valley as they deal with the Pentagon: intellectual property. The bill “gives industry some of what they wanted in terms of removing excessive detail from current law on IP ownership and rights, but it also adds new ‘unlimited’ government rights to interfaces where before those could still be proprietary,” the Hills staffer thinks. “So, it gives with one hand and takes away with the other.  Defense industry is livid about DoD overreach on IP these days, so giving DoD any new rights to take private IP is probably going to be a challenge.”

For a reporter and the public, perhaps the most useful proposal in Thornberry’s bill is the requirement that staff told reporters Monday that brief (one or two pages) summary reports on programs at both Milestones A and B will be publicly available. They would include crucial cost and fielding targets established by OSD and the military department building the weapon. It would also include “a summary” of the program’s technical risks and a summary of the Cost Assessment and Program Evaluation (CAPE) office’s sufficiency review. That would give the taxpayer — the folks who pay for the weapons — much better information on a more regular basis than they now get.