Skip to main content
The Army Lawyer | Issue 5 2020View PDF

No. 5: Modernizing Through Innovative Acquisition

Written By
Hannah Zeigler
Tags
2024-05-21
Lightbulbs with words in them

(Credit: istockphoto.com/EtiAmmos)

No. 5

Modernizing Through Innovative Acquisition

By Major Clayton J. Cox & Major Annemarie P.E. Vazquez

To succeed in the emerging security environment, our Department and Joint Force will have to out-think, out-maneuver, out-partner, and out-innovate revisionist powers, rogue regimes, terrorists, and other threat actors.1

Opening the Tool Box

Drawing a pair of Colt .45 automatic pistols, and accompanied by two submachine-gun-wielding mechanics, Captain (CPT) Paul Irvine “Pappy” Gunn entered a U.S. supply depot in Brisbane, determined to get what he needed for his unit’s mission.2 It was January 1942, and Manila—where his wife and children were still living—had just fallen to the Japanese.3 His family was in an internment camp. He was stuck in Australia, working to patch together a military force to push the enemy back—or at least stall their advance toward Australia.4 Desperation set in. Frustrated with the Army Air Force’s struggles to keep pace with Japanese warfighters, and understanding the need to modify U.S. equipment and tactics for the fight at hand, he took drastic measures to get what the mission required: he robbed his own quartermaster.5

Although most military leaders have never resorted to the drastic measures employed by then-CPT Gunn, many have shared his dissatisfaction with the process of getting what they need quickly and effectively for mission success. Not long after becoming president, Bill Clinton quipped that the federal procurement system “would have broken Einstein’s brain” and indicated that the White House was “running on Jimmy Carter’s telephone system and Lyndon Johnson’s switchboard.”6 More specifically related to the Department of Defense (DoD), in 2017 Senator John McCain—then-Senate Armed Services Committee Chairman—cautioned, “[W]e will not be able to address the threats facing this Nation with the system of organized irresponsibility that the defense acquisition system (DAS) has become.”7 Even the National Defense Strategy (NDS), with which the DoD aligns its acquisition priorities,8 voices dissatisfaction with the DAS, describing it as “over-optimized for exceptional performance at the expense of providing timely decisions, policies, and capabilities to the warfighter.”9

So how did we get here and why should military lawyers care? First, the NDS says it is important to improve the acquisition system to better serve warfighter needs. Due to their problem-solving skill sets and ability to navigate legal authorities, lawyers are well positioned to add value to this effort. However, this is true only when they understand the wide range of available authorities, their intended purposes, and the agencies empowered to use them. Second, many of the military’s acquisition activities make the news headlines. Having a basic understanding of the topic gives context to DoD’s on-going efforts to find solutions to acquisition system deficiencies.10 Third, legal teams are more effective when they understand their client’s priorities, and modernization—which requires innovative acquisition—is high on the list. In 2014, Chuck Hagel, former Secretary of Defense put it plainly,

We have always lived in an inherently competitive security environment, and the past decade has proven no different. While we have been engaged in two large land mass wars over the last thirteen years, potential adversaries have been modernizing their militaries, developing and proliferating disruptive capabilities across the spectrum of conflict….I see no evidence this trend will change….We must take the initiative to ensure that we do not lose the military-technological superiority that we have long taken for granted.11

As our adversaries incorporate and deploy advanced technologies, the United States must be prepared to engage in what Dr. Bruce Jette, the Army’s top acquisition executive, calls “a more complicated threat environment.”12 This environment includes new technology, such as drone swarms and unmanned aerial vehicles, that utilize artificial intelligence (AI)-enabled autonomous weapons.13 Fortunately, unlike CPT Gunn, we do not have to rob the quartermaster to get what we need. Over the years, Congress has modified—and continues to modify—our acquisition system to provide more ways to buy things we need now.

As examples of Congress’s efforts, and on top of DoD’s existing authorities, the Fiscal Year (FY) 2016 and 2017 National Defense Authorization Acts (NDAAs) expanded and added flexible acquisition authorities.14 In addition to improving flexibility, Congress designed this legislation to move procurement faster by advancing existing capabilities and acquiring emerging technology.15 Many of these authorities are specifically intended for research and development projects. All of them achieve speed as a byproduct of being flexible, meaning they eliminate regulatory hurdles, lower approval authorities, and streamline review processes.16 Congress has also provided the DoD authorities like Small Business Innovation Research (SBIR) contracts, Partnership Intermediary Agreements (PIAs), and Technology Investment Agreements (TIAs) to drive innovation within the commercial sector. Federal assistance instruments like grants and cooperative agreements allow the DoD to pursue projects with a public purpose with state and local governments. With Cooperative Research and Development Agreements (CRADA), the DoD can share its own research labs outside the federal government—including with the private sector and public institutions.

Many of these authorities are new and unfamiliar to attorneys, and they may not know which parts of the acquisition process they were intended to fix. To truly appreciate what fast and flexible means, one must have a reference point. To this end, the section Getting Oriented offers an overview of traditional acquisition options, and the section Rapid Acquisition Authorities offers a glance at ten flexible acquisition authorities. Knowing this information will ready practitioners for opportunities to engage and contribute to the DoD’s modernization effort.

Getting Oriented

The DAS is one of three interconnected systems that comprise what are called “Big A” acquisitions, which include the Joint Capabilities Integration and Development System (JCIDS); Planning, Programming, Budgeting, and Execution (PPBE) process; and the DAS.17 The JCIDS processes govern how the military identifies capability gaps across the force and decide whether they should fill those needs (requirements) with a materiel solution, as in, equipment.18 The PPBE process manages funding for identified requirements, which is often a multi-year endeavor. Finally, the DAS is the system that actually acquires whatever was approved (validated) in JCIDS and funded by the PPBE process. Planning occurs years in advance across services and, generally, takes about sixteen–and–a–half years from stating a requirement to it being operationally capable.19 This is due, in part, to regulatory processes and milestone reviews associated with programs that will be discussed momentarily.

While “Big A” acquisitions entail the triad of JCIDS, PPBE, and the DAS, “Little a” acquisitions are only done by the DAS, which, for purposes of this discussion, can be further separated into two general categories. The first gives rise to programs and are for acquisitions with high price tags that start at $185 million, or $40 million for an automated information system.20 Programs can be thought of as business strategies for carefully managing the entire lifecycle of the acquisition, setting forth phases, milestone reviews for advancement to the next phase, measures for ensuring performance and longevity, and controlling costs.21

Programs follow what was formerly called the “5000-series” of directives and instructions, recently renamed the Adaptive Acquisition Framework (AAF). The AAF starts with Department of Defense Directive (DoDD) 5000.01 and Department of Defense Instruction (DoDI) 5000.02T,22 which together establish how programs operate. A program is a management tool and not a contractual instrument to buy anything. Programs must work in conjunction with contractual vehicles to acquire the needed goods or services. That is to say, programs must work in conjunction with the second category of the DAS–contracting authorities. Put simply, a program is like a highway: it is unable to deliver goods, but it provides the pathway for trucks that do.

The second category within the DAS is the wide variety of contracts and contract-like instruments.23 The Federal Acquisition Regulation (FAR) is a body of law found in Title 48 of the Code of Federal Regulations,24 and it supplies a variety of methods for acquiring goods and services.25 These contracting methods are used in conjunction with programs as the legal instrument with which goods and services are acquired. They are also used as standalone contracts to fulfill requirements falling below program thresholds. This means that an agency desiring a new projector system can just follow the FAR and buy one—within fiscal constraints—instead of having to worry about DAS milestone review and approval requirements that would apply to a high-cost, risky project of producing the next-generation land combat vehicle. Similarly, an agency seeking a contract to research an unmanned aerial projector platform upon which they could mount intelligence, surveillance, and reconnaissance (ISR) equipment may pursue it under the FAR. That said, the agency may wish to diverge from the FAR in favor of other methods to avoid the applicability of notice and timing requirements and statutes, like the Competition in Contracting Act, 10 U.S.C. § 2304 or the Contract Disputes Act, 41 U.S.C. §§ 7101-7109, which can slow down or derail projects.26

The two categories of the DAS converge to create a system optimized to reduce risk, maximize performance, and control costs; but, if a person could describe the pace of a traditional program acquisition, it would be glacial. Given the scope and significance of the DoD’s eighty-eight Major Defense Acquisition Programs—each at an estimated cost of $480 million—the process seems almost necessarily slow.27 Almost. If operating in a vacuum, the DoD could take as long as it liked, but two external factors make “traditional” unsuitable for rapidly evolving technology and warfighter needs.

First, the DAS is slow for more than just the DoD. It is prohibitively slow, expensive, and cumbersome for all but the largest defense contractors in the industry.28 When the DoD was the major driver of research and development (R&D), this burden did not matter because the industry relied on the DoD as the main source of innovation. But the tables have turned, and industry investment in R&D dwarfs that of the DoD and leads the way in many areas of technological innovation—like artificial intelligence, robotics, and space.29 That means the DoD must adapt its acquisition processes to the private sector.

Second, the DoD and industry must partner together in creative ways to keep pace with evolving technology and, whenever possible, drive the direction of innovation in ways that support DoD’s mission to counter advances made by our adversaries.30 As stated in the NDS, “Today, we are emerging from a period of strategic atrophy, aware that our competitive military edge has been eroding.”31 This means the DoD must have and use flexible approaches to attract industry partners and collaborate with them. The remainder of this article introduces readers to alternatives and complements to traditional acquisition options, along with examples of how they are currently being used.

Rapid Acquisition Authorities

Authorities abound for speeding up the advancement and acquisition of technology and enticing non-traditional defense contractors to enter the fray. The following discussion introduces ten of them, some of which have gained significant media attention.32

if a person could describe the pace of a traditional program acquisition, it would be glacial

Middle-Tier of Acquisition—Section 804 of FY 2016 NDAA

Middle-Tier of Acquisition (MTA), also referred to as Section 804 authority, is something of a program-lite; it is intended for promising technologies and existing prototypes that do not require much additional development.33 This authority provides “a streamlined and coordinated requirements [JCIDS], budget [PPBE], and acquisition [DAS] process” for rapid prototyping and rapid fielding—and streamlined indeed, because MTA is exempt from JCIDS and the DAS program requirements.34 The rapid prototyping path moves technologies with a level of maturity to prototyping within five years, meaning the MTA program must demonstrate a prototype in an operational environment within five years. If proven technologies exist, they follow the rapid fielding path and must be fielded within five years.

Efficiencies are achieved by allowing planners to alter JCIDS, PPBE, and DAS processes in ways that can increase speed and flexibility. For example, lowering approval thresholds allows periodic reviews to pass through fewer layers of approval authorities before moving to the next milestone (a time-intensive process). Similarly, decision authorities are empowered to eliminate unnecessary documentation or approval processes that add little to no value to the program (there are a surprising number of them).35 Regardless of cost threshold, this authority can be used for everything from developing new systems to finding innovative ways to maintain old ones.36 However, per DoD guidance, the Under Secretary of Defense for Acquisition and Sustainment may determine that a program is not fit for the MTA pathway. The major capability acquisition pathway falls under DoDD 5000.02T. From there, they may direct the program to follow a more time-intensive major capability acquisition pathway, which falls under DoDD 5000.02T.37

An example of this option in action is the B-52 Commercial Engine Replacement Program (CERP), one of the first Air Force programs to use the MTA pathway.38 Needing to update the B-52’s engine, the Air Force decided buying commercially available engines and modifying them would best satisfy their need.39 The agency leveraged the MTA rapid prototyping authority to shorten the CERP’s timeline and reduce the required documentation by sixty percent of what would have been required under a traditional program.40 The Air Force acquisitions team set aside the traditional 5000-series schedule and created its own, which reduced costs related to time and unnecessary documentation, led to early virtual prototypes, and enabled the release requests for proposals from industry sooner.41 The agency estimates that the schedule consolidation enabled by the MTA pathway saved about $500 million.42 Furthermore, the Air Force elected to consolidate prototype testing requirements that would have traditionally been required.43 Due to the successful implementation of the MTA pathway, the Air Force anticipates awarding a CERP contract for these new engines by July 2021, a huge step towards its stated goal of keeping the B-52 in service until at least 2050.44 The agency estimates that using MTA instead of following traditional requirements will shave three–and–a–half years off the acquisition timeline.45

Section 806 FY 2017 NDAA Prototyping Projects

Similar to MTA authority, Section 806 of the FY 2017 NDAA provides authority to pursue rapid prototyping by adapting major capability acquisition program requirements, but it is specifically intended for major weapon systems.46 Through that authority, prototypes are selected “through a merit-based selection process that identifies the most promising, innovative, and cost-effective prototypes.”47 Prototypes must be complete within two years, and the project cost must fall below $50 million.48 Projects must address “high priority warfighter needs; capability gaps or readiness issues with major weapon systems; opportunities to incrementally integrate new components into major weapon systems based on commercial technology, [...] and opportunities to reduce operation and support costs of major weapon systems.”49

One major benefit of using this authority is the ability to select a project for a follow-on FAR-based contract, or other transaction (OT), for production without competition.50 The promise of a follow-on contract or OT provides strong incentives for commercial entities to meet the required need, and no competition can make production happen sooner.

Urgent Capability Acquisitions

“An 80% solution in seven to eight weeks is better than a 95% solution in two years.”51 This is the mantra that drives the DoD’s unrelenting pace for Urgent Capability Acquisitions (UCAs), which is a specific program authority found within the 5000-series.52 Urgent capability acquisition requirements originate with Combatant Commanders, and are those urgent operational needs (UONs) that, if unfulfilled, “result in capability gaps potentially resulting in loss of life or critical mission failure,” and may be joint in nature (JUONs), or concern joint emergent operational needs (JEON).53 Solutions are fielded in two years or less by exempting UONs from PPBE, many program requirements, and many of the JCIDS requirements. Like MTA or major capability acquisition (“traditional”) programs, UONs may be fulfilled using a combination of FAR- and non-FAR-based contractual instruments.54

One example of the process comes out of Army units in Iraq that needed a solution for defeating enemy use of small, unmanned aerial systems (sUAS), which the enemy used to surveil and attack Iraqi forces.55 The drones operated so low that the unit’s only defense was small arms fire. A hand-picked team of subject-matter experts used existing contracts together with letter contracts (also called undefinitized contract actions, or UCAs),56 interagency acquisition authorities and Military Interdepartmental Purchase Requests (MIPRs),57 and research labs across the DoD.58 An iterative feedback loop with warfighters helped shape the final product: a counter-sUAS (C-sUAS) modified from commercial off-the-shelf (COTS) drones that the forward units received in months, not years. Though urgent capability acquisitions may seem like a multipurpose authority, it is only intended for readily adaptable or mature technology to fulfill the most urgent needs arising from operational necessity. If successful, the technology generated from UCAs could transition to an MTA program or a major capability acquisition program for full-scale production.

Other Transaction Authority

One available option for rapid acquisitions gets a fair amount of contemporary press: Other Transaction Authority (OTA). Although it has recently become a buzzword, the authority has been around for decades, originating during the Space Race of the 1950s and 1960s.59 Other Transaction Authority is a flexible option for research and developing prototypes, especially when existing technology capable of meeting a need is non-existent or underdeveloped. Like the MTA pathway, OTA can provide shortcuts to the traditional major capability acquisition pathway in DoDI 5000.02T, and it can also provide alternatives to FAR-based contracting vehicles.

Other Transaction Authority—Research

The DoD’s OTA authority empowers it in two ways: conducting research and developing prototypes. First, under its authority derived from 10 U.S.C. § 2371, the DoD can “enter into transactions (other than contracts, cooperative agreements, and grants)…in carrying out basic, applied and advanced research projects.”60 Projects under § 2371 are exempt from the processes of DoDI 5000.02T and JCIDS.61 Transactions under this authority are exempt from most provisions of the FAR, including most of its statutory requirements.62 However, one of the key benefits is that these agreements are highly tailorable and may be used in conjunction with the FAR and other authorities.63 When used for research, these transactions are generally called Technology Investment Agreements (TIAs), discussed further below.64

Other Transaction Authority—Prototyping

Second, under the authority granted by 10 U.S.C. § 2371b, the DoD may conduct prototype projects aimed at improving mission effectiveness, whether that be for personnel, “supporting platforms, systems, components, or materials” or improvements of any of these used by the armed forces.65 Agreements under this authority are commonly referred to as other transactions (OTs) and may be used on their own or in conjunction with other acquisitions authorities, such as Middle-Tier of Acquisition authority or prize authorities.66 For example, a prize competition could be structured so that the winning solutions to a pre-defined problem set (e.g., the best machine learning algorithm for predicting post-traumatic stress diagnosis) are eligible for a prototype OT. Proven techniques could transition seamlessly from competition to prototyping.67 Additionally, under § 2371b, the DoD may also award a follow-on production contract for a developed prototype without competing the award; but, this only occurs if certain requirements are met.68 Offering the possibility of a follow-on production contract without competition is a powerful financial incentive for potential contractors to compete for the initial OT. More initial participation means more creative solutions for the DoD to choose from and competitive pricing.

Though speed is often a benefit of using OTA,69 its primary purpose is to create a flexible way for the private sector and the U.S. Government (USG) to do business.70 Certain sectors of industry avoid the bureaucratic slog of traditional government contracting, and OTA is meant to fix that by simplifying and streamlining various acquisition processes and incentivizing participation.71

In light of OTA’s primary purpose, those using OTA prototyping authority should keep in mind that its use comes with restrictions. The DoD may only use OTA if one of four conditions have been met:

  1. at least one nontraditional defense contractor or nonprofit research institution participates to a significant extent;
  2. all significant participants other than the Federal Government are small businesses or nontraditional defense contractors;
  3. at least one third of the prototype project’s cost will be paid for by someone other than the Federal Government; or
  4. exceptional circumstances justify use of OTA, as determined by the senior procurement executive for the agency.72

An example of this option in action is the National Security Space Launch (NSSL) program, which has been “charged with procuring launch services to meet the government’s national security space launch needs.”73 To accomplish this goal, the NSSL has developed a multi-phase strategy being implemented from fiscal year (FY) 2013 to FY 2027.74 The overall program is complex and uses a variety of acquisition tools,75 including use of OTA to help expand an underdeveloped space launch system industrial base.76 Through OTs, the Air Force has awarded investment funding for developing launch vehicle prototypes to United Launch Alliance (ULA), Blue Origin, and Orbital Science Corporation.77 This OT funding has enabled more competition when soliciting for space launch services.78

Small Business Innovation Research (SBIR) Program

Another acquisition tool popular in the R&D community is the SBIR program. Its mission includes stimulating innovation, meeting research and development needs, and fostering socioeconomic development.79 In carrying out this mission, it encourages small businesses to participate in federal research and development efforts.80

The SBIR program has three phases, each with its own aims. The first thins the overall number of submissions, awarding up to $150,000 to cover six months’ of costs for businesses whose ideas have technical merit, feasibility, and commercial potential.81 The second phase focuses on the scientific and technical merit, awarding up to $1 million to cover up to two years’ of costs for those advancing from the first to second phase.82 The final phase is unfunded, but advancing businesses benefit through assistance received in commercializing their work, and may include follow-on R&D contracts with the USG.83 The government benefits by having developed new technology and a new business partner.

One of many SBIR success stories involves the Navy’s use of the program to develop Automated Test and ReTest (ATRT), created by Innovative Defense Technologies.84 This suite of technologies started as a Navy SBIR contract nested within a larger Navy initiative to get “software-driven capabilities to the warfighter as quickly as possible.”85 Launching surface-to-surface missiles from a Navy littoral combat ship is a complex task involving tremendous technical configurations and interfacing. This capability is enabled by ATRT.86 Furthermore, ATRT provides an eighty-five percent savings in time and manpower, increased system quality, and reduced costs.87 These are promising results from a non-traditional partner.

Federal Assistance Instruments

Since the Revolutionary War, the USG has used federal assistance instruments to offer aid in various forms to states, local governments, and even individuals.88 Federal assistance instruments may be used as contractual vehicles as part of an established program or as stand-alone agreements. Though varied in form and substance, a common thread binds federal assistance instruments—furtherance of a public purpose.89

Grants and Cooperative Agreements

Two of the most well-known federal assistance instruments are grants under 31 U.S.C. § 630490 and cooperative agreements under 31 U.S.C. § 6305.91 Though they are considered contracts, they are not procurement contracts.92 That means they are regulated by the DoD Grant and Agreement Regulations (DoDGARs) and not bound by the FAR.93 The Federal Grant and Cooperative Agreement Act of 1977 clarifies when a procurement contract, grant, or cooperative agreement should be used.94 Contracts are the appropriate instrument when the USG seeks to acquire property or services for its own direct benefit or use.95 However, if the primary purpose is “to carry out a public purpose of support or stimulation authorized by law” then the proper instrument is a grant or cooperative agreement.96 Grants and cooperative agreements enable an agency to develop relationships with companies for minimal investment and, depending on the level of USG involvement in the contemplated activity, either a grant (no substantial involvement) or cooperative agreement (substantial involvement) is appropriate.97

Grants are used for a multitude of reasons, but most frequently for R&D with the DoD. A small FY 2020 grant with the University of Maryland examines the safety and reliability of artificial intelligence agents used within Cyber-Physical Systems domains, like self-driving cars.98 The grant funded a two-day workshop with subject matter experts whose task was to produce a report outlining promising areas of study for increasing safety, reliability, and resiliency of AI-enabled technologies. Subsequent spin-offs could pursue the workshop’s leads with yet another grant or other agreement.

Technology Investment Agreements (TIAs)

Another type of assistance instrument is the TIA. The TIA is specifically designed to increase collaboration and investment by the private sector in defense research programs with a view toward innovations that support future defense needs.99 Curiously, the TIA may use authority under 10 U.S.C. § 2358 and take the form of a cooperative agreement; or, with proper justification, it may use authority under 10 U.S.C. § 2371 and be fashioned as an “assistance transaction other than a grant or cooperative agreement.”100 The distinction lies in the extent to which the USG needs to negotiate intellectual property and data rights, with § 2371 having the most flexibility for negotiation.

The benefit of a TIA is not the payment of money—cost-sharing to the maximum extent practicable is required; rather, it is the self-interested potential for profit on the private sector side and increased civil-military integration on the government side.101 Indeed, recipients must include a for-profit partner. Profit-driven involvement equates to a strong incentive to invest in order to ensure, for example, the successful incorporation of the technology into the marketplace.102 For the DoD, this incorporation increases competition, which then drives down acquisition costs.103

Partnership Intermediary Agreements (PIAs)

Partnership Intermediary Agreements (PIAs) are often lumped together with TIAs, but they serve different functions. Authority for PIAs flows from a different source, 15 U.S.C. § 3715, and the overarching purpose is different, too; PIAs are not vehicles for research projects.104 Rather, their purpose is to facilitate technology transfer from DoD labs to the private sector and accelerate licensing.105 Additionally, while TIAs may be fashioned as cooperative agreements or “assistance transactions other than a grant or cooperative agreement,” a PIA may take shape as a contract, agreement, or memorandum of understanding between the federal government and a state or local government.106 This authority is available to federal laboratories and federally funded research and development centers.107

Consider Montana State University’s TechLink, a service that helps “innovation-minded businesses and entrepreneurs identify, evaluate, and license technology developed within DoD and [Veterans Affairs] labs nationwide.”108 Its website lists over 7,000 technologies available for licensing and offers free consultation with licensing professionals to navigate the application process. Through TechLink’s service, a United Kingdom-based company, Equivital, Inc., licensed an Army patent for an algorithm that it used to create wearable monitoring technology.109 The technology has expanded worldwide across sectors and is used in U.S. military hazardous materials protective clothing to monitor, predict, and prevent heat-related casualties.

Though not always intended for speed, federal assistance instruments are flexible, industry-oriented tools for facilitating research and development, or speeding up technology transfer.110 This makes them attractive options when the DoD wishes to leverage the private sector’s capacity for speeding technological advancement and mass-producing or scaling dual-use technologies.

Cooperative Research and Development Agreements (CRADAs)

Another federal assistance instrument available is a Cooperative Research and Development Agreement (CRADA), which is highly tailorable and allows the Federal Government to collaborate with universities, the private sector, and state and local government.111 Often the level of collaboration is extensive, with the USG and non-USG researchers working side by side in the same lab. As part of a CRADA, federal laboratories and these non-federal partners provide personnel, services, facilities, equipment, intellectual property, or other resources to conduct specific research and development efforts.112 The authorizing statute provides broad authority, limited primarily by the mission of the agency’s laboratory.113 Also, as the FAR does not govern CRADAs, these agreements can be tailored easily, adapting them to the needs of the agency and non-federal partner, and executed quickly so work can get underway.114

Laboratories across the DoD regularly use CRADAs. One example of this is the Navy’s Naval Surface Warfare Center, Panama City Division (NSWCPCD) and its partnership with a multi-national company.115 As part of a CRADA, these two organizations developed technology for military divers to better navigate under dangerous conditions.116

For the DoD, this incorporation increases competition, which then drives down acquisition costs

Federal assistance instruments are flexible, industry-oriented tools for facilitating research and development, and increasing technology transfer.117 This makes them attractive options for leveraging the private sector’s capacity for speeding technological advancement and mass-producing or scaling dual-use technologies.

Incentive Prizes and Challenge Competitions

A relatively recent option for acquisitions is the use of challenges and prizes to promote innovation and build bridges with non-traditional private sector partners.118 There are various authorities that allow certain agencies to conduct prize contests, including the DoD.119 Government-initiated challenge competitions tend to be modeled after commercial competitions and pitch sessions.120 They often have phases, wherein competitors submit white papers describing their idea. Those submissions are narrowed, and the remaining competitors pitch their innovations in more detail or demonstrate a proof of concept, which can include simulated events and attacks, contests, races, or closed course demonstrations. Selected entrants may receive seed or prize money to continue their work, cover costs, and help further develop the technology. In some cases, successful competitors will be offered contracts or other government agreements to develop and scale the technology. Not all agencies have authority to sponsor challenge competitions, but those that do are increasingly putting them to use.121 Agencies across the federal government list current challenges for the public at challenge.gov, and they range from redesigning a government website to searching for synthetic biology solutions.122

In 2015, the Air Force Research Laboratory (AFRL) offered a $2 million prize “to spur innovation in mid-sized turbine engine technologies.”123 The Air Force took lessons learned from that project to enhance its prizes and challenges in the future.124 Tech hubs across the DoD use SBIR contracts together with these authorities to spark interest in private sector-defense collaboration, spur innovation, and support small business forays into dual-use technologies.125

Another example comes from the Army Rapid Capabilities Office (RCO), which hosted the Army Signal Classification Challenge in 2018. Over 150 teams from universities, laboratories, industry, and government competed for a first place prize of $100,000 to show “they had the best artificial intelligence [AI] and machine learning [ML] algorithms for performing ‘blind’ signal classification quickly and accurately.”126 The goal was to find AI and ML solutions to reduce the cognitive burden on Soldiers engaged in electronic warfare (EW) and improve the speed and accuracy of EW operations. The RCO’s first foray into competitive challenges was a success: Rob Monto, Emerging Technologies Director, said, “[I]n a matter of less than four months…we have a very accurate, very rapid algorithm for a specific problem set….[W]e can move forward with trying to build and integrate it into a real solution for the Army.”127

Competitions serve many ends: they stimulate leap-ahead technologies pulled from the far reaches of people’s garages, university laboratories, and private sector tech firms. They pool resources, ideas, and talent, they encourage usable, transferrable solutions for immediate implementation, and they draw attention to problems the DoD faces in ways no request for proposals ever could.128

Conclusion

A wide range of options are available for quickening the pace of acquisition, reducing barriers to private sector engagement, developing and fielding small-scale solutions, and driving innovation. Although frustration with acquiring the technology, equipment, and services needed for warfighting is not new—it has most certainly been around as long as war itself. That frustration need not endure. Yet, the global race toward advancement of technology further complicates domestic efforts to keep the upper hand and compels us all to find, or better yet, create, opportunities for modernization and integration of future technologies into the force. Using fast and flexible authorities to overcome that demanding challenge requires leaders who can identify those opportunities, assemble the right team, and navigate regulatory hurdles.

Considering the mandate of the NDS, the nature of today’s geo-political climate, and U.S. adversaries’ pursuit of disruptive technology, legal practitioners should be familiar with the reasons for the DoD’s concerted drive to develop and integrate technology-enabled capabilities into the force. Understanding the basics of how the DoD cultivates, obtains, and shares innovative ideas, systems, and approaches using flexible acquisition authorities prepares practitioners for future opportunities to engage and contribute as the DoD modernizes “a Joint Force fit for our time”—no Colt .45s required.129 TAL

Maj Cox is a professor in the Contract and Fiscal Law Department at The Judge Advocate General’s Legal Center and School in Charlottesville, Virginia.

MAJ Vazquez is a professor in the Contract and Fiscal Law Department at The Judge Advocate General’s Legal Center and School in Charlottesville, Virginia.

Notes

1. Summary of the 2018 National Defense Strategy of the United States of America: Sharpening the American Military’s Competitive Edge 5 (2018) [hereinafter Nat’l Def. Strategy].

2. John R. Bruning, Indestructible 179-80 (2016).

3. Id. at 164-71.

4. Id. at 182.

5. Id. at 179-80, 325-26.

6. National Archives and Records Administration, 1 Public Papers of the Presidents of the United States: William J. Clinton, January 20 to July 31, 1993, at 141 (1994).

7. Department of Defense Acquisition Reform Efforts: Hearing Before the S. Armed Servs. Comm. (SASC), 115th Cong. 2 (2017) (statement of Sen. John McCain, Chairman, SASC) [hereinafter DoD Reform Efforts].

8. Nat’l Def. Strategy, supra note 1. The National Defense Strategy is nested with the National Security Strategy. See National Security Strategy of the United States of America 29 (2017) [hereinafter Nat’l Sec. Strategy].

9. Nat’l Def. Strategy, supra note 1, at 10.

10. Nat’l Sec. Strategy, supra note 8, at 27.

11. Memorandum from Sec’y of Def. to Secretaries of the Military Dep’ts, subject: The Defense Innovation Initiative (Nov. 15, 2014).

12. Todd South, Here’s How the Army Acquisition Chief Plans to Equip Soldiers for the Next War, Army Times (Jan. 10, 2019), https://www.armytimes.com/news/your-army/2019/01/10/heres-how-the-army-acquisition-chief-plans-to-equip-soldiers-for-the-next-war/.

13. Id. See also Ryan Pickrell, The U.S. Air Force Wants to Put an AI Drone up Against a Fighter Pilot in a Dogfight That Could Change Aerial Combat, Bus. Insider (Jun. 5, 2020), https://www.businessinsider.com/us-air-force-to-have-drone-dogfight-a-fighter-jet-2020-6.

14. See, e.g., National Defense Authorization Act for Fiscal Year 2016, Pub. L. No. 114–92, §§ 804, 806, 129 Stat. 726, 882 (2015) [hereinafter FY16 NDAA]; National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, § 2447d, 130 Stat. 2259 (2016) (10 U.S.C. § 2447d) [hereinafter FY17 NDAA]. Some existing authorities are discussed in the section Rapid Acquisition Authorities.

15. DoD Reform Efforts, supra note 7, at 4. “Emerging technology” has no government-wide definition. See, e.g., Nat’l Def. Strategy, supra note 1, at 3; Kelly M. Sayler, Cong. Rsch. Serv., IF11105, Defense Primer: Emerging Technologies (2019).

16. See discussion in the section Rapid Acquisition Authorities.

17. Chairman, Joint Chiefs of Staff, Instr. 5123.01H, Charter of the Joint Requirements Oversight Council (JROC) and Implementation of the Joint Capabilities Integration and Development System (JCIDS) (31 Aug. 2018) [hereinafter CJCSI 5123.01H]; U.S. Dep’t of Def., Dir. 7045.14, The Planning, Programming, Budgeting, and Execution (PPBE) Process (25 Jan. 2013) (C1, 29 Aug. 2017). See U.S. Dep’t of Def., Dir. 5000.01, The Defense Acquisition System para. 4.1 (12 May 2003) (C2, 31 Aug. 2018) [hereinafter DoDD 5000.01]; U.S. Dep’t of Def., Instr. 5000.02T, Operation of the Defense Acquisition System 15 (7 Jan. 2015) (C5, 21 Oct. 2019) [hereinafter DoDI 5000.02T]. Effective 23 January 2020, the 2015 version of DoDI 5000.02 was renumbered to DoDI 5000.02T (transition), and remains in effect until content is removed, cancelled, or transitioned to a new issuance and the new DoDI 5000.02 cancels it. See U.S. Dep’t of Defense, Instr. 5000.02, Operation of the Adaptive Acquisition Framework (23 Jan. 2020).

18. As opposed to non-materiel solutions: Doctrine, Organization, Training, (materiel), Leadership and Education, Personnel, Facilities, or Policy, known as “DOTmLPF-P.” See Chairman, Joint Chiefs of Staff, Instr. 3170.01H, Manual for the Operation of the Joint Capabilities Integration and Development System B-G-F-1 (31 Aug. 2018).

19. Jon Harper, New Undersecretary Vows to Shake up Pentagon’s Acquisition System, Nat’l Def. (Mar. 6, 2018), https://www.nationaldefensemagazine.org/articles/2018/3/6/new-undersecretary-vows-to-shake-up-pentagons-acquisition-system.

20. DoDI 5000.02T, supra note 17, encl. 1, Table 1. Other factors may result in designation as an Acquisition Category (ACAT) program, like technological complexity, congressional interest, or a large commitment of resources. See also Major Defense Acquisition Programs, 10 U.S.C. § 2430; Major Systems, 10 U.S.C. § 2302d.

21. DoDD 5000.01, supra note 17.

22. DoDI 5000.02T, supra note 17.

23. Not all contractual instruments are “contracts.” Some are called grants, cooperative agreements, or “other transactions.” Each is discussed in the section Rapid Acquisition Authorities.

24. FAR, https://www.acquisition.gov/browse/index/far (last visited Sept. 29, 2020).

25. See, e.g., id. pts. 13, 15, 34, 35. There are other non-FAR-based methods, some of which are discussed in the section Rapid Acquisition Authorities.

26. These projects include: the Competition in Contracting Act, 10 U.S.C. § 2304; the Contract Disputes Act, 41 U.S.C. §§ 7101-7109; and other FAR notice and timing requirements. See, e.g., Availability of Solicitations, FAR 5.102; Preaward, Award, and Postaward Notifications, Protests, and Mistakes, FAR 15.5.

27. That figure does not include lower-dollar threshold programs. Off. Undersec. Def. & Chief Financial Off., Program Acquisition Costs by Weapons System 5 (Feb. 1, 2020) (This document is the DoD’s Budget Request for Fiscal Year 2021). The trade-off for a slower pace is minimization of risk and maximization of performance over the long haul. The B-52’s seven years of development compared to ninety-nine years of service is a great example. See Walter J. Boyne, The Best Bargain in Military History, Air Force Mag. (Nov. 27, 2018), https://www.airforcemag.com/article/the-best-bargain-in-military-history/.

28. See Bill Greenwalt, Build Fast, Effective Acquisition: Avoid the System We’ve Got, Breaking Def. (Apr. 25, 2014, 4:30 AM), https://breakingdefense.com/2014/04/build-fast-effective-acquisition-avoid-the-system-weve-got/ (“These new restrictions and regulations have incentivized many emerging commercial companies to stay out of DoD contracting. And those commercial companies that currently sell to the military are now faced with the choice of opting out of the government marketplace or radically changing their structure to conform to these requirements.”).

29. See Nat’l Def. Strategy, supra note 1, at 1; Annual Report 2017, Def. Innovation Unit 2 (2017), https://www.diu.mil/about.

30. See also America’s Eroding Technological Advantage: NDS RDT&E Priorities in an Era of Great Power Competition with China, Govini (2020), https://www.govini.com/americas-eroding-technological-advantage-nds-rdte-priorities-in-an-era-of-great-power-competition-with-china/.

31. Nat’l Def. Strategy, supra note 1, at 1.

32. See, e.g., Courtney Albon, SpaceX Refutes Air Force’s Jurisdictional Claims in Launch Services Lawsuit, Inside Def. (July 12, 2019), https://insidedefense.com/share/204216; Jackie Wattles, Elon Musk Speaks at Air Force ‘Pitch Day’ as Military Seeks to Deepen Ties to Commercial Space, CNN (Nov. 5, 2019, 8:30 PM), https://www.cnn.com/2019/11/05/tech/elon-musk-air-force-pitch-day-spacex/index.html. Other authorities not discussed include Mechanisms to Speed Deployment of Successful Weapon System Component or Technology Prototypes, 10 U.S.C. § 2447d; FY17 NDAA, supra note 14, § 879 (Defense Commercial Solutions Opening Pilot Program, 10 U.S.C. § 2302 note); and Independent Research and Development Costs, 10 U.S.C. § 2372.

33. U.S. Dep’t of Def., Instr. 5000.80, Operation of the Middle Tier of Acquisition (MTA), paras. 1.2.b, 3.1.a, 3.2.a (30 Dec. 2019) [hereinafter DoDI 5000.80].

34. FY16 NDAA, supra note 14, § 804; DoDI 5000.80, supra note 33, § 1.2f. This is not to say the program proceeds without management; quite the opposite. Program executive offices carefully tailor the program to fit the needs of the acquisition.

35. DoDI 5000.80, supra note 33. See 3 Section 809 Panel, Report of the Advisory Panel on Streamlining and Codifying Acquisition Regulations, Rec. 75 (2019) (“Revise regulations, instructions, or directives to eliminate non-value-added documentation or approvals.”).

36. Interview by Ben Fitzgerald with Dr. Will Roper, Assistant Secretary of the Air Force for Acquisition, Technology & Logistics and Dr. Bruce Jette, Assistant Secretary of the Army, for Acquisition, Logistics & Technology (June 2018), https://aaf.dau.edu/aaf/mta/highlights/.

37. DoDI 5000.80, supra note 33, § 2.1.

38. Abbigail Pogorzelski, Manager, Commercial Engine Replacement Program, Presentation on DAU Section 804 Middle Tier Acquisition Discussion: B-52 Commercial Engine Replacement Program (Apr. 3, 2019), https://www.dau.edu/News/Powerful-Example—B-52-Commercial-Engine-Replacement-Program.

39. Id.

40. Powerful Example: B-52 Engine Replacement Program, Defense Acquisition University (last visited Sept. 29, 2020), http://cdnapisec.kaltura.com/index.php/extwidget/preview/partner_id/2203981/uiconf_id/39997971/entry_id/1_hri8fhuh/embed/dynamic/ [hereinafter DAU Podcast].

41. Pogorzelski, supra note 38; see also DAU Podcast, supra note 40.

42. DAU Podcast, supra note 40.

43. Id.

44. John A. Tirpak, USAF Releases B-52 Engine Replacement RFP, Award Expected July 2021, Air Force Mag. (May 20, 2020), https://www.airforcemag.com/usaf-releases-b-52-engine-replacement-rfp-award-expected-july-2021/.

45. Pogorzelski, supra note 38.

46. 10 U.S.C. § 2447b(c)(1). Major weapon systems are defined in 10 U.S.C. § 2430.

47. 10 U.S.C. § 2447c(b).

48. 10 U.S.C. § 2447c.

49. 10 U.S.C. § 2447c(b); 10 U.S.C. § 2447b(c).

50. 10 U.S.C. § 2447d.

51. Defense Acquisition University (DAU) Powerful Examples Team, JRAC Helps Warfighters Overcome Urgent Threat from Enemy Drones, DAU (Aug. 6, 2019), https://www.dau.edu/powerful-examples/Blog/Powerful-Example—JRAC-helps-Warfighters-overcome-urgent-threat-from-enemy-drones [hereinafter DAU Team].

52. The solutions must fall below certain programs thresholds. See U.S. Dep’t of Def., Dir. 5000.71, Rapid Fulfillment of Combatant Commander Urgent Operational Needs (24 Aug. 2012) (C1, 31 Aug. 2018) [hereinafter DoDD 5000.71]; see also U.S. Dep’t of Def., Instr. 5000.81, Urgent Capability Acquisition (31 Dec. 2019) [hereinafter DoDI 5000.81].

53. CJCSI 5123.01H, supra note 17, Glossary.

54. DoDD 5000.71, supra note 52; DoDI 5000.81, supra note 52.

55. DAU Team, supra note 51.

56. See FAR 16.603 regarding undefinitized contract actions, called “letter contracts” (a “written preliminary contractual instrument” that is used when a definitive contract cannot be completed in time). Prior to starting any project (and obligating funds), the requirement must be validated, or approved, by the appropriate authority.

57. A Military Interdepartmental Purchase Request is how military organizations transfer money in exchange for services, supplies or equipment. See U.S. Dep’t of Def., Def. Contract Mgmt. Agency, Instr. 704, Military Interdepartmental Purchase Request (MIPR) ¶ 1.2.1 (June 26, 2013). See also FAR 17.5.

58. This being a joint urgent operational need, other services were also facing a similar capability gap. You can explore DoD’s research labs online. See Department of Defense Laboratories, Def. Innovation Marketplace, https://defenseinnovationmarketplace.dtic.mil/business-opportunities/laboratories/ (last visited May 27, 2020).

59. Heidi M. Peters, Cong. Rsch. Serv., R45521, Department of Defense Use of Other Transaction Authority: Background, Analysis, and Issues for Congress 1 (2019). Other Transaction Authority includes 10 U.S.C. § 2371 (for research), 10 U.S.C. § 2371b (for prototyping), and 10 U.S.C. § 2373 (for experimentation). Section 2373 is not discussed, but generally allows the DoD to “buy…telecommunications supplies, including parts and accessories, and designs thereof” that are necessary for experimental or test purposes in furtherance of national of national defense. Id.

60. 10 U.S.C. § 2371(a).

61. Though, they could be designated as programs due to technological complexity, congressional interest, or a large commitment of resources. See DoDI 5000.02T, supra note 17, encl. 1, tbl 1.

62. Peters, supra note 59, at 1.

63. 10 U.S.C. § 2374(d)-(e). See Richard Dunn, Prize Authority – From Prize to What?, Strategic Inst. (June 19, 2019), https://www.strategicinstitute.org/other-transactions/prize-authority/.

64. Diane Sidebottom, Presentation to the Advanced Acquisitions 2 Class at The Judge Advocate General’s Legal Center and School (Apr. 17, 2020). But see Richard L. Dunn, 10 U.S.C. 2371 “Other Transactions”: Beyond TIA’s, Strategic Inst. (July 31, 2017), https://www.strategicinstitute.org/tag/richard-l-dunn/ (Agreements under 10 U.S.C. § 2371 need not always be TIAs. And, TIAs need not always be “other transactions” under 10 U.S.C. § 2371; they may use 10 U.S.C. § 2358 as cooperative agreements.). See the discussion in the section Rapid Acquisition Authorities.

65. 10 U.S.C. § 2371b(a)(1).

66. Sidebottom, supra note 64. In this article, OTA will be used for Other Transaction Authority, not Other Transaction Agreements, which are also commonly abbreviated at OTAs. Other transactions and the agreements memorializing them will be referred to as OTs.

67. 10 U.S.C. § 2374(d)-(e); see also Dunn, supra note 64.

68. 10 U.S.C. § 2371b(f).

69. Speed is not always a benefit of using OTA, especially the first times an agency uses it. See Sidebottom, supra note 63.

70. Id.

71. Id.

72. 10 U.S.C. § 2371b(d)(1).

73. Space Expl. Techs. Corp. v. United States, 144 Fed. Cl. 433, 436 (2019).

74. Id. at 443.

75. See id.

76. Id. at 437. See also National Security Space Launch, Air Force Space Command (Nov. 6, 2012), https://www.afspc.af.mil/About-Us/Fact-Sheets/Display/Article/1803281/national-security-space-launch/.

77. Space Expl. Techs. Corp., 144 Fed Cl. at 438.

78. Thomas Burghardt, Tory Bruno Outlines ULA Transition to Vulcan and National Security Launches, NASASpaceFlight (Mar. 12, 2020), https://nasaspaceflight.com/2020/03/tory-bruno-ula-transition-vulcan-nssl-launches.

79. The SBIR and STTR Programs, SBA, https://www.sbir.gov/about (last visited Aug. 26, 2020). For examples of SBIR success stories, see Company Stories, SBA, https://www.sbir.gov/news/success-stories (last visited Aug. 26, 2020).

80. Id.

81. Id.

82. Id.

83. 15 U.S.C. § 638(i)(2)(C).

84. SBIR-STTR-Success: Innovative Defense Technologies, SBA (Feb. 24, 2020), https://www.sbir.gov/node/1665115.

85. Id.

86. Id.

87. Id.

88. 32 C.F.R. § 21.420 (2020); see, e.g., Land-Grant Act of 1862 (Morrill Act), 7 U.S.C. §§ 301-305, 308, Pub. L. 37–130 (1862) (granted land to universities to establish agricultural and engineering programs); Homestead Act of 1862, 12 Stat. 392 (granted 160 acres of public land to settlers agreeing to maintain them for five years).

89. 31 U.S.C. §§ 6304-6305.

90. By dollar amount, grants dwarf federal dollars spent on other assistance agreements. See FY Spending By Object Class, USASpending, https://www.usaspending.gov/#/explorer/object_class (last visited Aug. 26, 2020). As of 31 March 2020 the federal government obligated seventy percent of its $3.4 trillion budget on grants and fixed charges. Of that only $467 million came from DoD’s dedicated research, development, test, and evaluation funds. Id.

91. 31 U.S.C. §§ 6304–6305.

92. As defined in FAR 2.101, 15; see also 32 C.F.R. § 21.670 (2020).

93. 32 C.F.R. § 21.325 (2020) (FAR and its supplements apply only if DoD Grant and Agreement Regulations specify they do); Trauma Serv. Grp., Ltd. v. United States, 33 Fed. Cl. 426 (1995).

94. 31 U.S.C. §§ 6303-6305.

95. 31 U.S.C. § 6303. See also 32 C.F.R. § 22.205(a) (2020).

96. 31 U.S.C. § 6304. See also 31 U.S.C. §§ 6303, 6305. Cooperative agreements are not the same as cooperative research and development agreements under 15 U.S.C. § 3710a. See also the discussion in the section Rapid Acquisition Authorities. “Substantial involvement” is not defined, but see Off. of Mgmt. & Budget, Implementation of Federal Grant and Cooperative Agreement Act of 1977, 43 F.R. 36,860, 63 (Aug. 18, 1978).

97. See discussion supra note 96.

98. See Workshop on Assured Autonomy, Award number W911NF2010020, Dep’t of Def. Grant Awards (Jan. 1, 2020), https://dodgrantawards.dtic.mil/grants/#/simpleSearch (type W911NF2010020 into the Simple Search box and click on Workshop on Assured Autonomy).

99. 32 C.F.R. § 37.115 (2020). See generally, 32 C.F.R. § 21.680 (2020). See also discussion, supra note 62 (Agencies with a delegation of authority under 10 U.S.C. § 2371 or 10 U.S.C. § 2358 may use a TIA). 32 C.F.R. § 37.120 (2020).

100. The distinction lies in the patent rights provisions. See 32 C.F.R. § 37.120 (2020), Appx. B; see also discussion, supra note 64 (Agencies with a delegation of authority under 10 U.S.C. § 2371 or 10 U.S.C. § 2358 may use a TIA).

101. 32 C.F.R. § 37.215 (2020); see 10 U.S.C. § 2501(b).

102. 32 C.F.R. § 37.115 (2020).

103. 32 C.F.R. §§ ٣٧.٢١٠, ٣٧.٢١٥ (٢٠٢٠).

104. 15 U.S.C. § 3715.

105. Id.

106. Including: state and local agencies and state or local government-funded, chartered, or operated nonprofits that assist, counsel, advise, evaluate, or cooperate with small business firms or institutions of higher education. See 15 U.S.C. § 3715(c).

107. 15 U.S.C. § 3715(a); see also 15 U.S.C. § 3710a(d)(2) (definition of federally funded research and development center).

108. See Your Pipeline to Innovative Products and Services, TechLink Center, https://techlinkcenter.org (last visited Aug. 27, 2020).

109. Beating the Heat: Company Leverages Army Patent to Commercialize Wearable Monitor Systems, TechLink Center, https://techlinkcenter-assets.s3-us-west-2.amazonaws.com/success-stories/Equivital.pdf (last visited Aug. 27, 2020).

110. Federal agencies must have statutory authority to use assistance instruments. 32 C.F.R. § 21.410 (2020); see also 32.C.F.R. § 21.420 (2020) (list of statutory authorities).

111. 15 U.S.C. § 3710a.

112. Gregg Sharp, Presentation on Grants and Cooperative Agreements at The Judge Advocate General’s Legal Center and School to the Advanced Contract Attorneys Course (Mar. 18, 2004) (on file with authors).

113. Landon Wedermyer, The Cooperative Research and Development Agreement: A Force Multiplier for Cyber Acquisition 16 (Dec. 17, 2019) (on file with authors). See also 15 U.S.C. § 3710a(d)(1).

114. 15 U.S.C. § 3710a.

115. U.S. Dep’t of Navy, Tech. Transfer Program Off., Cooperative Research and Development Agreements Annual Report Fiscal Year 2018, at 5 (2018).

116. Id.

117. See supra note 109.

118. Memorandum from Jeffrey D. Zienks, Dep. Dir. For Mgmt. on Guidance on the Use of Challenges and Prizes to Promote Open Government to the Heads of Exec. Dept. and Agencies (Mar. 8, 2010), whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2010/m10-11.pdf.

119. See 10 U.S.C. § 2374a; Crowdsourcing & Citizen Science, 15 U.S.C. § 3724; 15 U.S.C. § 3719.

120. The term “competitions” is used in the generic sense.

121. See, e.g., prize and competition authorities discussed in the Conclusion. Increased use of DoD’s flexible acquisition authorities is due in part to an expansion of authorities. See, e.g., FY16 NDAA, supra note 14; FY17 NDAA, supra note 14. This increase is also partly attributable to acknowledgment that the DoD needs to speed up innovation, and Congressional encouragement to do it faster. See Department of Defense Acquisition Reform Efforts: Hearing Before the S. Armed Servs. Comm. (SASC), 115th Cong. 4 (2017) (statement of Sen. John McCain, Chairman, SASC); 1-3 Section 809 Panel, Report of the Advisory Panel on Streamlining and Codifying Acquisition Regulations (2019). See generally Nat’l Sec. Strategy, supra note 8, at 29; Nat’l Def. Strategy, supra note 1.

122. About Challenge.gov, U.S. Gen. Serv. Admin., https://www.challenge.gov/about/ (last visited May 27, 2020).

123. Transformational Innovation, U.S. Air Force https://www.transform.af.mil/Projects/Air-Force-Tech-Challenge/ (last visited Aug. 27, 2020).

124. Id.

125. See Army Futures Command, U.S. Army, https://www.army.mil/futures (last visited Aug. 27, 2020); Army Applications Lab, U.S. Army, https://aal.army/ (last visited Aug. 27, 2020) (Please note that this website only works on non-government, or civilian, computers); AFWERX, U.S. Air Force https://www.afwerx.af.mil/faq.html (last visited Aug. 27, 2020); NAVALX, U.S. Navy, https://www.secnav.navy.mil/agility/Pages/events.aspx (last visited Aug. 27, 2020); About SOFWERX, SOFWERX, https://www.sofwerx.org/about (last visited June 11, 2020).

126. Nancy Jones-Bonbrest, Army Contest Invites Winning Innovators to Bring AI Capabilities to Soldiers, U.S. Army Rapid Capabilities & Critical Tech. Off. (Aug. 27, 2018), https://rapidcapabilities office.army.mil/news/Army-rapid-capabilities-office-announces-winners-of-artificial-intelligence-challenge/.

127. Id.

128. See, e.g., Alex Davies, Inside the Races that Jump-Started the Self-Driving Car, Wired (Nov. 10, 2017, 7:00 AM), https://www.wired.com/story/darpa-grand-urban-challenge-self-driving-car/; Alex Davies, An Oral History of the DARPA Grand Challenge, The Grueling Robot Race that Launched the Self-Driving Car, Wired (Aug. 3, 2017, 9:00 AM), https://www.wired.com/story/darpa-grand-challenge-2004-oral-history/ (The participants of DARPA’s Grand Challenges formed a community of visionaries who, ten years later, are the leaders of the industry that has integrated self-driving cars into cities worldwide.).

129. See Nat’l Def. Strategy, supra note 1, at 11.