In the long haul, our safety as a nation may depend upon our achieving ‘space superiority.’ Several decades from now the important battles may not be sea battles or air battles, but space battles, and we should be spending a certain fraction of our national resources to ensure that we do not lag in obtaining space supremacy.1
Following the Soviet Union’s launch of the Sputnik satellite in 1957, a first in the history of mankind,2 the United States found itself standing at a strategic crossroads: would it allow its Cold War adversary to become the world’s leader in space, or would it rapidly develop its own space program to challenge the Soviet Union in this new frontier? The United States chose the latter way forward, and over the next twelve years executed a focused and determined strategy that culminated with it becoming the first (and only) country to put a human being on the moon—thereby winning the Space Race against the Soviet Union.3 Although this storyline is well known by anyone who has studied basic American history, less is known about the innovative acquisition authority that fueled investments necessary for the United States to prevail.
This acquisition authority, known as Other Transaction (OT) authority, originated with the National Aeronautics and Space Act of 1958.4 The Act established the National Aeronautics and Space Administration (NASA) and gave it authority to enter into “other transactions” with “any firm, association, corporation, or educational institution” as “may be necessary in the conduct of its work and on such terms as it may deem appropriate.”5 Such a broad grant of acquisition authority reflected a belief within Congress that the United States must become the world’s leader in space to maintain its prosperity and security. To ensure this national imperative was realized, Congress treated U.S. space programs as “vital and non-negotiable” during the Space Race—prioritizing space technological development with limited regard to cost and accepting failures as a predicate to achieving success with space missions.6
Following the Space Race, however, Congress’s interest in funding space initiatives progressively waned. For example, U.S. government expenditures on NASA as a percentage of total U.S. government spending decreased eightfold from its pinnacle in 1965 (4.44%) to 2020 (0.48%).7 Although concerning by itself, the deprioritization of space investment by the United States has been made exponentially worse by China’s and Russia’s aggressive development of space capabilities during the same period.8 In recent years, such development has been achieved primarily by the Chinese Communist Party (CCP), which views space capabilities as critical to increasing China’s military power and influence in international affairs.9 Along with robustly funding China’s national space programs,10 the CCP has worked diligently to develop and leverage China’s private space industry for government purposes.11 As a result, private investment in Chinese space companies—whose operations are influenced, if not outright controlled, by the CCP—now exceeds that of any other country.12
The diverging prioritization of space investment between the United States and its current near-peer rivals has endangered the United States’ position as the predominant global space power. This reality presents significant risks for U.S. national security given the pivotal role played by space capabilities in modern warfare and the ubiquitous reliance on these capabilities for use of modern technology.13 Accordingly, the United States once again finds itself standing at a strategic crossroads. Does it allow China or Russia to gain decisive military advantages in space that would alter the balance of power across all warfighting domains, and endanger the functioning of national governments and economies? Or does it rapidly acquire the space technology, systems, and weaponry needed to achieve space superiority and thereby assure U.S. and allied security interests?
This ongoing battle for space superiority is Space Race 2.0, and to prevail in it the United States must leverage the acquisition authority used to win the original Space Race against the Soviet Union. Specifically, Congress must equip the USSF with stand-alone OT authority, and mandate its use within an alternative acquisition system, to enable rapid acquisition of the cutting-edge space technology, systems, and weaponry needed to counter space threats from near-peer rivals.14 Additionally, to ensure the benefits of this system are fully realized, Congress must protect acquisition speed by requiring congressional reporting on OT policies and the USSF must develop space acquisition professionals capable of effectively utilizing OT authority through an intensive training program with academia, internships with the commercial space industry, and career specialization.
In support of these proposals, this article explores in Part II the ways in which the United States, like much of the world, is now completely reliant upon space to function—and how such overreliance has created significant vulnerabilities for U.S. and global security. Also discussed in Part II are ways in which China and Russia are aggressively developing military space capabilities, the likelihood that both countries will violate international law using these capabilities, and the pressing need for the United States to harness innovation from within the commercial space industry to achieve space superiority. Part III explores the unique attributes of space, how these attributes make acquisition the primary warfighting capability in space, and reasons why the Federal Acquisition Regulation (FAR) and its Department of Defense (DoD) supplements are ill equipped to meet the needs for military space acquisitions. Part IV discusses how an OT-focused acquisition system is better equipped to meet these needs, challenges with implementing this new system, and actions Congress and the USSF can take to mitigate or eliminate those challenges.
Although few humans have ever traveled to space, most of the world’s governments, businesses, and societies are now dependent upon this enigmatic domain to function. This dependence is primarily a result of point, navigation, and timing (PNT) capabilities provided by the U.S. Global-Positioning Satellite (GPS) system, and to a lesser degree other satellite systems. PNT capabilities have, in many respects, revolutionized transportation—making them critical components of the modern global transportation system.15 For example, PNT capabilities allow national aviation agencies to precisely track the thousands of aircraft flying at any given time, enabling greater safety in commercial air travel.16 PNT capabilities also provide truck and ship operators with the quickest routes to precise locations, allowing businesses to meet just-in-time demand for the goods of global commerce.17 Furthermore, PNT capabilities behind applications like Siri and Google Maps generate real-time driving directions that are often habitually used for personal transportation, potentially to the detriment of basic human navigation skills.18
However, global dependence on PNT capabilities extends well beyond transportation. PNT capabilities synchronize computer networks and cell phone towers, allowing governments, businesses, and individuals to efficiently share data and communicate.19 They also facilitate high-speed market transactions within the global financial system, including credit card payments, ATM withdrawals, and securities trades on investment exchanges.20 And of perhaps greatest significance, PNT capabilities are utilized by advanced militaries when taking human life21 and protecting the safety of their nation’s citizens from missile attacks.22 All told PNT capabilities from the space domain are now essential to the proper functioning of governments, economies, societies, and advanced militaries—making their uninterrupted use critical to protecting both U.S. and global security.
Despite the tremendous PNT (and other) capabilities provided by the space domain, global dependence on space has not come without a price. It has created centers of gravity23 in satellite systems and associated computer networks that, if attacked, could place entire countries in a technological blackout and leave their militaries unable to coordinate attacks, traverse a foreign country, or communicate. As the predominant global space power, the United States is uniquely vulnerable to this threat—a vulnerability which near-peer rivals, like China and Russia, are actively working to exploit.24 In fact, exploitation of U.S. dependence on space is now part of China’s and Russia’s respective military strategies. As Secretary of Defense Lloyd Austin stated in written testimony to the Senate Armed Services Committee: “Chinese and Russian military doctrines . . . indicate that they view space as critical to modern warfare and consider the use of counterspace capabilities as both a means of reducing U.S. military effectiveness and for winning future wars.”25
In line with their military doctrines, China and Russia are investing heavily in capabilities to deny the United States (and other rivals) access to the strategic advantages provided by space. For example, both countries have developed and successfully tested ground-based anti-satellite (ASAT) weapons to enable attacks on critical satellite systems like GPS.26 These weapons include missiles, lasers that can blind or damage optical sensors on satellites in low earth orbit (LEO), and electromagnetic and signal jamming technologies capable of disrupting satellite operations.27 In addition, China and Russia are rapidly developing space-based ASAT weapons, including missiles, projectiles, and satellites with robotic arms.28 These weapons allow either country to attack the United States’ vital satellites (and other space assets) from hundreds of miles above Earth—and outside the range of traditional U.S. defenses.29 Moreover, China and Russia have greatly improved their respective cyberspace capabilities as a means to attack computer networks relied upon to control satellites.30 Employment of these capabilities by either country could potentially degrade the United States’ ability to control its satellites—and the world’s ability to utilize their critical functions—all without firing a shot.31
While developing capabilities to deny space’s strategic advantages to rivals, China, in particular, has sought to exploit those same advantages for its own gain. This is perhaps best seen by China’s prodigious launching of satellites in recent years. Between 2018 and 2020 China launched more satellites into orbit than any other country.32 These launches have greatly enhanced China’s intelligence, surveillance, and reconnaissance (ISR) abilities as many Chinese satellites with high-powered optical sensors now orbit Earth—allowing China to better monitor the activities of rival militaries and more timely respond to perceived acts of aggression.33 In addition, these launches allowed for the 2020 completion of China’s satellite constellation named Beidou, which provides PNT capabilities as an alternative to those provided by GPS and, according to the CCP, “better meets the demands of [China’s] national security.”34 With its completion of Beidou and ongoing construction of up to 1,000 supporting ground stations, China will soon provide superior PNT capabilities in Southeast Asia than those currently provided by GPS.35
This PNT imbalance will not only bolster China’s ongoing anti-access/area-denial operations36 in the South China Sea, which utilize PNT capabilities, but could also prove decisive during a potential armed conflict between China and the United States in the region.37 Specifically, China would be free to attack defenseless GPS satellites with its ASAT weapons and, in so doing, likely succeed in degrading the United States’ ability to “fight, communicate, target, precision-strike, or maneuver” on foreign battlefields.38 Under these conditions, the United States would struggle to prevail in an armed conflict against China in Southeast Asia. This disturbing (and plausible) reality would endanger the United States’ ability to protect its strategic interests and allies in the region, thereby placing regional security—and consequently U.S. national security—at risk.
China’s and Russia’s intense focus on developing military space capabilities demonstrates a belief shared by both countries that the space domain will play a decisive role in future armed conflicts.39 Commenting on this fact, Dr. William Roper, former Assistant Secretary of the Air Force for Acquisitions, Technology, and Logistics, declared during recent congressional testimony: “Why fight a nation’s stealth fighters, aircraft carriers, or brigade combat teams if you can defeat satellites that guide their maneuver, communications, and weapons? Why fight their military at all if their critical economic veins flow through space?”40 If China or Russia were ever to achieve space superiority,41 it could disrupt the ability of the United States to conduct military operations, participate in the global economy, or carry out basic government functions. To avert these staggering outcomes, it is imperative that Congress and the DoD make the rapid development and acquisition of military space capabilities a leading defense priority.
As China and Russia continue to develop their military space capabilities, it is unlikely that they will use these capabilities within the confines of international law. The Outer Space Treaty (OST), signed in 1967, remains the foundational body of international law governing the exploration and use of space.42 Among the OST’s provisions are a guarantee for the free exploration and use of space by all States, a requirement for the execution of all activities in space in accordance with the United Nations (U.N.) Charter, and prohibitions on claims of sovereignty over celestial bodies.43 Like the United States and vast majority of countries, China and Russia are parties to the OST.44 However, this does little to assuage concerns with China’s and Russia’s intentions in space as both countries routinely violate international law when deemed necessary to further their respective national interests.
China, for example, openly engages in land reclamation activities in the South China Sea in an attempt to expand its sovereign jurisdiction, despite a ruling by the Permanent Court of Arbitration that its expansive jurisdictional claims have no basis in international law.45 These activities have produced artificial islands, particularly in the Paracel and Spratly Island chains, which now house Chinese military assets including anti-ship cruise missiles, long-range surface-to-air missiles, and fighter aircraft.46 China regularly uses these military assets to challenge and deter foreign transit through international waters and airspace, in an effort to consolidate control over the South China Sea and legitimize its expansive jurisdictional claims through the creation of customary international law.47 Given wide-spread global reliance on the South China Sea, which each year services nearly twenty-five percent of global shipping48 and twelve percent of global fishing,49 it is likely that China will continue its military expansion in the region as both a means of advancing its own economy and gaining greater leverage over the economies of other countries.
Russia, on the other hand, continues to openly violate the sovereignty of its neighboring countries in direct contravention of the U.N. Charter.50 Examples of this behavior include Russia’s invasion of Georgia in 2008, and subsequent recognition of two pro-Russia breakaway countries;51 its invasion of Ukraine in 2014, and subsequent annexation of Ukraine’s Crimea region;52 and its full-scale invasion of Ukraine in 2022, which was originally designed to overthrow the country’s pro-Western government.53 Through these illegal uses of military force, Russia—a member of the U.N. Security Council, like China—has unlawfully expanded its territorial boundaries and eroded those of other countries from the former Soviet Union. As a result, Russia has significantly improved its strategic positioning and ability to influence the geopolitical landscape on the European continent.54
Given China’s and Russia’s demonstrated unwillingness to abide by international law, and the distinct strategic advantages offered by space, it is all but certain that both countries will exploit the space domain in illegal ways that further their respective national interests. China, in fact, has gone so far as publicly comparing its interests in space to its illegal territorial claims on Earth—with senior Chinese space officials likening the Moon and Mars to island chains in the South China Sea.55 These public statements, when evaluated alongside China’s aggressive development of military space capabilities and routine violations of international law, leave little doubt that China will continue its illegal territorial expansion into outer space. If left unchecked, such expansion may allow China to establish “specially managed zones” that limit the maneuverability of the United States and its allies within the space domain.56 This outcome would prove harmful to future U.S. space efforts—and catastrophic for global security.
Despite China’s and Russia’s aggressive pursuits in space, the U.S. government has not prioritized development of space capabilities in the half-century following the end of the Space Race.57 Meanwhile, private sector investment in space has exploded since the turn of the 21st century, with no end in sight.58 Exciting (and potentially lucrative) business opportunities in space tourism and space-based internet services, as well as the prospect of advancements in manufacturing and medicine from a zero-gravity environment, have driven enormous sums of private funding to, and growth from within, the U.S. commercial space industry (“commercial space industry”).59 This has led to remarkable innovations in space technology, including the creation of reusable launch vehicles (for space tourism);60 lower-cost LEO satellites (for space-based internet and communications);61 and on-orbit repair, refueling, and debris management systems.62 Often this commercial space technology is “dual use,” meaning it can also be used for military purposes with limited or no modifications required.63 However, even for military-specific space requirements, like space-based weaponry, non-traditional suppliers in the commercial space industry are where the United States must turn to harness the innovation engine “redefining possible” within the space domain. Accomplishing this will require the USSF to cultivate close relationships with these suppliers and utilize a procurement method that incentivizes them to compete for USSF requirements.
These relationships will not only provide access to advanced military space capabilities, but also eliminate national security risks created by outsourcing space support to foreign countries. It bears noting that these risks are not simply theoretical—as evidenced by Russia’s attempted coercion of the United States during the Evolved Expendable Launch Vehicle (EELV) program.64 EELV was created by Congress in 1995 to ensure the affordability and reliability of military space launches, and to address concerns with the potential export and proliferation of Russian missile expertise to hostile countries following the collapse of the Soviet Union.65 It eventually led to a licensing agreement between the United States and Russia, whereby the U.S. agreed to purchase Russian-made RD-180 rocket engines for exclusive use in its Atlas V launch vehicle.66 When the United States imposed economic sanctions on Russia in 2014 for its illegal invasion of Ukraine, the Russian Deputy Prime Minister, who oversaw export licenses for the RD-180, announced that Russia would “no longer deliver [RD-180] engines to the United States” without “guarantees that [they] are used only for launching civilian payloads.”67
Congress responded to this attempted coercion by creating the National Security Space Launch (NSSL) program, which authorized the United States Air Force (USAF) (and now the USSF) to partner with the commercial space industry, using OT authority, to develop new space transport prototypes.68 The NSSL program has since yielded four launch vehicles—two provided each by the United Launch Alliance and SpaceX—that have been used to launch U.S. military satellites into orbit and perform deliveries to the International Space Station, free from foreign influence.69 Although NSSL’s successes in utilizing OT authority highlight the tremendous results possible with military-commercial engagement, the risks of outsourcing key elements of spacepower to foreign countries, which led to the program’s creation, should not be forgotten. Hence, Congress should apply lessons learned from both the NSSL and EELV programs to Space Race 2.0 by directing the USSF to partner with the commercial space industry—and not foreign powers—for the acquisition of cutting-edge space technology, systems, and weaponry.
The indispensable role of the commercial space industry is only one way in which the space warfighting domain fundamentally differs from the traditional warfighting domains of land, sea, and air. Other differences include cost, the role of non-traditional suppliers, the primacy of technology, and future strategic implications. Collectively, these differences warrant the creation of a military space acquisition system outside the FAR.
Cost is perhaps the most significant difference in the space warfighting domain. The vast expense of space technology and space travel serves as a barrier to operating in this domain for all but the wealthiest countries.70 With few countries able to fund their own advanced space programs, the ability of the United States to deter China’s and Russia’s space militarization efforts becomes that much more important. Further complicating this task is the reluctance of many countries to recognize space as a warfighting domain,71 which inhibits the United States from relying upon allies for military support in space to the same extent it can in traditional warfighting domains, or even with cyber operations.
Another pronounced difference with the space warfighting domain is the role of non-traditional suppliers. Unlike in the traditional warfighting domains, technological innovation in the space warfighting domain is led by non-traditional suppliers, including small startup companies.72 One example of such a non-traditional supplier is Lunewave, a privately-held small business with less than 50 employees.73 Founded by two college professors, Lunewave manufactures high-powered radar sensor systems and antennas for a variety of commercial industries, including space, automotive, and telecommunications.74 In 2021, the company received a $1.7 million Small Business Innovation Research (SBIR) contract75 from the USSF to develop a satellite antenna capable of monitoring the positioning of multiple satellites simultaneously.76 The SBIR contract was awarded at a USSF “Pitch Day” event, which allowed small businesses to “pitch” their innovative ideas for solving military space requirements in a Shark Tank-like competition.77 Through the event, the USSF targeted the non-traditional suppliers, like Lunewave, that are driving innovation within the commercial space industry and often produce “dual use” technology.78 For the United States to outpace China’s and Russia’s development of military space capabilities, and enable victory in Space Race 2.0, the USSF must continue to engage with these non-traditional suppliers.79 Therefore, relationships with non-traditional suppliers should not be the exception in a military space acquisition system—but the standard.
Further differentiating the space warfighting domain is the primacy of technology. Although technology plays an important role in all warfighting domains, it is a prerequisite for securing military advantages in space. Complex launch vehicles capable of escaping Earth’s gravitational pull are required to even enter—and compete in—space. Once there, spacesuits and atmospheric control systems are needed to survive space’s harsh conditions. Moreover, advanced spacecraft, satellites, and weaponry capable of operating hundreds of miles above Earth, and with limited maintenance, are required to identify and neutralize threats to space assets from rival countries. These space assets, and in particular satellites, in turn provide capabilities that are routinely relied upon in the traditional warfighting domains—such as enhanced command and control of military forces, 24/7 ISR, and precision targeting for land-, air-, and sea-based missile strikes.80 Accordingly, the country that most rapidly acquires advanced military space capabilities gains significant advantages not just in the space warfighting domain, but across all warfighting domains.
Lastly, and perhaps most importantly, the space warfighting domain is differentiated from traditional warfighting domains by its greater strategic implications for establishing the international order. As space technology, systems, and weaponry continue to develop, it appears inevitable that spacepower will revolutionize warfare much like airpower did beginning with World War II.81 Although military capabilities from space largely support other warfighting domains today, near-peer rivals are rapidly developing space-based weapons, including lasers and hypersonic missiles, that are capable of striking targets on Earth from “the new high ground in modern warfare.”82 With continued development of these weapons and corresponding defense systems, spacepower will increasingly play a decisive role in deciding terrestrial conflicts—and others occurring far beyond the Earth’s surface. The outcomes of these conflicts will likely determine which countries get to benefit from the endless opportunities provided by space, such as the creation of colonies and mineral resources on other planets—and which countries get left behind.
To be effective, a military space acquisition system must account for the unique attributes of the space warfighting domain. Specifically, it must enable rapid, agile, and threat-informed acquisitions that are not constrained by cost efficiency measures, socioeconomic policies, or rigid procedural requirements.83 In addition, it must allow the USSF to have a close, trusting, and collaborative relationship with non-traditional suppliers in the commercial space industry so that advanced military space capabilities can be developed and acquired.84 The FAR, which was instituted in 1984 and today governs the vast majority of government procurements, does not meet these needs for military space acquisitions.85
On a foundational level, the FAR’s priorities are incongruent with those required for military space acquisitions. The vision of the FAR, “to deliver on a timely basis the best value product or service to the customer, while maintaining the public’s trust and fulfilling public policy objectives,”86 seeks to satisfy numerous competing priorities. According to Professor Steven Schooner of the George Washington University Law School, a leading scholar in the field of federal procurement, these priorities are: competition, integrity, transparency, efficiency, best value, customer satisfaction, wealth distribution, risk avoidance, and uniformity.87 By attempting to “prioritize everything,” the FAR, in practice, “prioritizes nothing”—a fact which often leads to suboptimal procurement outcomes for the U.S. government.88 However, when it comes to military space acquisitions, these suboptimal outcomes are experienced with even greater frequency as many of the priorities embedded in FAR-based procurement undermine the needs of these distinct acquisition efforts.
Take, for example, the priorities of “risk avoidance” and “best value.” The development of cutting-edge space technology, systems, and weaponry is research and development (R&D) intensive. It requires a tolerance for risk or even failure as various prototypes are created, tested, and rebuilt when they fail to achieve performance objectives.89 In addition, it requires a willingness to spend large sums of money to fund these innovative efforts, which often succeed only after extensive trial and error. These needs of military space acquisitions are in direct conflict with the prioritization of “risk avoidance” and “best value” under the FAR.
To be clear, the FAR does acknowledge that risk in federal procurement can never fully be eliminated. Specifically, an update to the FAR states that the federal acquisition system must transition its focus from “risk avoidance” to “risk management.”90 But this transformation in the FAR’s approach to risk is rooted in achieving efficient operations,91 not in prioritizing intelligent risk taking—a prerequisite for developing cutting-edge space technology, systems, and weaponry. Moreover, the FAR’s revised approach of “risk management” does not rectify structural incentives to avoid risk within the federal acquisition system. When contracting officials exercise discretion by utilizing new vendors, innovative technologies, or novel procurement techniques, they often receive scrutiny and adverse career consequences if their decision leads to failing results.92 This frequently leads contracting officials to take less risk than allowed by law with their procurement strategies,93 an outcome that does not seek to manage risk, but to reduce it as much as possible.
However, accepting increased risk and cost is precisely how the United States has conquered some of its most difficult national security challenges. During the Cold War, for example, “gigantic contracts with fat margins” were awarded to assist then Brigadier General Bernard Schriever with developing an intercontinental ballistic missile (ICBM) capable of delivering a nuclear weapon to the Soviet Union within minutes.94 Along the way, Schriever “repeatedly blew up rockets and missile prototypes on the launch pad,” and yet his efforts were protected from bureaucrats and others who sought to kill the ICBM program.95 In less than eight years, Schriever and his team successfully developed four ICBMs (Thor, Atlas, Titan, and Minuteman) and also laid the technical foundation for America’s future missions to space and the moon,96 all because innovation was prioritized ahead of “risk avoidance” and achieving the “best value.”
Furthermore, the prioritization of “uniformity” under the FAR does not comport with the distinct nature of military space acquisitions. The FAR aims to create a uniform procurement system with all federal agencies following the same laws, rules, and practices so (1) companies are not required to learn new rules in order to do business with different agencies, (2) government buyers are easier to train, and (3) such buyers are able to work for various agencies during their careers.97 Because the commercial space industry has not historically contracted with the federal government and provides specialized services and products, reason one for uniformity is of minor concern. Moreover, reasons two and three should not apply to the USSF, which requires a specialized acquisition workforce and institutional expertise to acquire the innovative space technology, systems, and weaponry necessary to counter dangerous space threats.
Finally, the prioritization of “wealth distribution” under the FAR conflicts with the national security imperative of prioritizing performance in military space acquisitions. In pursuing “wealth distribution,” the FAR establishes set-asides at varying cost thresholds for small businesses and sometimes specifically for service-disabled veteran-, minority-, and women-owned small businesses.98 These socioeconomic policies are appropriate for many types of federal acquisitions and can help level the playing field for small businesses and historically disadvantaged business owners interested in performing federal contract work. However, they are not appropriate for military space acquisitions—an area where the United States should be myopically focused on developing and acquiring the most cutting-edge military space capabilities, as quickly as possible.
To fulfill other priorities like “competition,” “integrity,” and “transparency,” the FAR mandates inefficient procedures for advertising federal procurement opportunities. In addition, FAR-based procurement provides avenues for contractors to pursue redress when they believe requirements outlined in the FAR are not followed by federal government representatives. The result is lengthy procurement timelines that undermine the effectiveness of military space acquisition efforts.
Driving delay from the outset are the FAR’s mandatory synopsis and solicitation requirements. Due to their complex nature, military space acquisition efforts are expensive—most extend well into the millions and even billions of dollars.99 Under the FAR, when a federal agency advertises a procurement requirement that is categorized as R&D and exceeds the Simplified Acquisition Threshold (SAT) (currently set at $250,000), it must draft a synopsis of the requirement, post the synopsis on the federal procurement website (SAM.gov) for at least fifteen days, and provide at least forty-five days for interested companies to provide their bids or proposals.100 All told the FAR allocates at least sixty days for a process that must move faster for military space acquisitions.101
Compounding the delay experienced with FAR-based procurement are bid protest disputes. Under the FAR, an “interested party” may object to alleged error committed by the U.S. government during (1) a solicitation, (2) the cancellation of a solicitation, (3) the award or proposed award of a contract, or (4) the termination of a contract due to improprieties in its award.102 An “interested party,” which is defined by the FAR as an “actual or prospective bidder whose direct economic interest would be affected by award or failure to award the contract,” may file a written objection (known as a “bid protest” or “protest”) with the relevant agency, the U.S. Government Accountability Office (GAO), and the U.S. Court of Federal Claims (COFC) concerning the alleged error.103 If the protest is filed at the agency or GAO within prescribed timelines, the “interested party” is normally entitled to a stay of contract award or suspension of contract performance until the protest—regardless of its merit—is resolved.104 At the COFC, a temporary restraining order and preliminary injunction, which also prevent award of a contract, are available.105
As a result of these structural delays, U.S. government requirements—including those critical to protecting national security—can be held hostage by litigation taking months or even years to run its course.106 A particularly egregious example is Amazon’s protest of a ten-billion-dollar DoD cloud computing contract in 2019.107 The contract, named Joint Enterprise Defense Infrastructure (JEDI), was protested by Amazon at the COFC on the basis that its award to Microsoft was influenced by then President Donald Trump’s alleged bias against Amazon and its CEO at the time, Jeff Bezos.108 After twenty months of litigation, the DoD announced its cancellation of JEDI due to changing “mission needs.”109 Today, the DoD still lacks enterprise-wide cloud computing, an essential service that businesses and individuals—to include U.S. military members in their personal capacity—regularly use.110 This technological shortfall has prevented the DoD from developing vital capabilities like Joint All-Domain Command and Control (JADC2), which is critical to ensuring U.S. success in a potential armed conflict with a near-peer rival.111
In addition to lengthening procurement timelines, the FAR (and its DoD supplements) create disincentives for companies considering technology or software development contracts with the DoD. As previously discussed, robust R&D is critical to developing and acquiring the advanced military space capabilities needed to win Space Race 2.0. However, rigid intellectual property (IP) requirements triggered by DoD contracts often dissuade non-traditional suppliers—like those leading innovation within the commercial space industry—from competing altogether.112 Of particular concern is a structure of IP entitlements the U.S. government receives when an “item, component, or process” (ICP) or a computer software program developed under a DoD contract is non-commercial—meaning, generally, that it was developed specifically for the U.S. government and is not available to the public.113
When a non-commercial ICP is developed exclusively with U.S. government funds under a DoD contract, the U.S. government is entitled to “Unlimited Rights.”114 With “Unlimited Rights,” the U.S. government may use the ICP’s underlying technical data for essentially any legal purpose.115 Conversely, when a non-commercial ICP is developed with a mix of U.S. government and private funds under a DoD contract, the U.S. government is entitled to “Government Purpose Rights” (GPR), which generally last for five years.116 During the GPR period, the U.S. government may not use the ICP’s underlying technical data for commercial purposes but may still modify, release, reproduce, perform, display, or disclose such data within the U.S. government without restriction.117 It may also release or disclose such data outside the U.S. government for a “U.S. government purpose,”118 i.e., a non-commercial reason.119 After the GPR period ends, the U.S. government’s interest in the ICP converts to the broader “Unlimited Rights” standard.120
When a non-commercial ICP is developed exclusively with private funds under a DoD contract, “Limited Rights” are triggered.121 With “Limited Rights,” the ICP’s underlying technical data generally may not be shared outside the U.S. government without permission from the contractor that created the ICP.122 However, exceptions to this general prohibition exist and their applicability is solely within the discretion of the U.S. government.123 These exceptions permit reproduction, release, or disclosure of technical data outside the U.S. government when (1) it is necessary for emergency repair and overhaul, (2) the recipient is a U.S. government support contractor in the performance of a U.S. government contract, or (3) the recipient is a foreign government and the action is both is in the interest of the United States and required for evaluation or informational purposes.124
For non-commercial computer software developed under a DoD contract, the structure of IP entitlements is similar, with one notable difference. Similar to the allocation of technical data rights for non-commercial ICPs, the exclusive or partial use of U.S. government funds to develop non-commercial computer software under a DoD contract triggers “Unlimited Rights” or GPR, respectively.125 However, when such software is developed exclusively with private funds under a DoD contract “Restricted Rights” are triggered.126
“Restricted Rights” implicate limitations on the U.S. government’s use of non-commercial computer software that go beyond those found with “Limited Rights” for non-commercial ICPs. For example, the U.S. government must use the software on only one computer terminal at a time.127 And when the software is transferred within the U.S. government, the transferring agency must destroy all copies of it when the transfer is complete.128 But even with these additional restrictions, the U.S. government retains the ability with “Restricted Rights” to share (or authorize the sharing of) non-commercial computer software with third parties in certain situations and to unilaterally determine when those situations apply. Examples of situations when such sharing is authorized include (1) when use of non-commercial computer software by another contractor or subcontractor is required to perform emergency repairs on it,129 and (2) when U.S. government support contractors, in conjunction with their government support work, need to use, modify, reproduce, perform, display, release, or disclose non-commercial computer software to a person authorized to receive software with “Restricted Rights.”130
For industry, the implication of the aforementioned IP entitlement structures is that doing business with the DoD entails losing full control over the technology and software it develops. This is a disincentive, and oftentimes a non-starter, for companies that consider IP necessary for their future growth and survival.131 Making matters worse are industry concerns about the U.S. government’s ability to protect IP from unauthorized disclosure and resulting harms to a company’s competitive advantage.132 It bears noting that these concerns are not unfounded—as many examples of such unauthorized disclosure exist. One making national headlines recently is the Department of Energy’s apparent inability to safeguard a breakthrough battery technology capable of powering a house for over thirty years on a single charge.133 This technology, which was developed with over fifteen million dollars in taxpayer funds, and its underlying IP were inadvertently transferred to a Chinese manufacturing company that has since become the world’s top manufacturer of these cutting-edge batteries134 (and has undoubtedly shared this IP with the CCP). Examples like this135 generate concern for any company considering technology or software development work with the U.S. government. However, for startups and other non-traditional suppliers in the commercial space industry—whose “lifeblood” is IP and continuous technological development—these concerns are further magnified.
The Defense Federal Acquisition Regulation Supplement (DFARS) attempts to address these challenges by providing some narrow authorities to negotiate technical data rights in DoD contracts. For example, a contracting officer may lengthen the nominal five-year GPR period for technical data underlying a non-commercial ICP developed with mixed funding.136 As a result, the U.S. government’s receipt of “Unlimited Rights,” and its concomitant ability to use technical data for commercial purposes, are delayed—thereby enhancing the contractor’s profit potential. Additionally, the DFARS permits a contracting officer to accept lesser U.S. government rights in technical data in return for other consideration from the contractor.137 However, the DFARS also mandates that a contracting officer acquire at least “Limited Rights” in technical data138 or “Restricted Rights” in non-commercial computer software for the U.S. government.139 By requiring these minimums or “floors,” the DFARS unnecessarily limits the ability of contracting officers to negotiate and shuts the door for defense contracting on companies unwilling to relinquish control over their IP. This, in turn, precludes the DoD from partnering with many innovation-minded tech companies.140
Further complicating matters is the fact that these narrow authorities to negotiate IP rights under the DFARS often go unused. Two primary reasons for this phenomenon exist. First, as previously discussed, structural incentives within the federal acquisition system often reward “risk avoidance,” not intelligent risk-taking, by contracting officials.141 As a result, rather than negotiating for alternative IP frameworks, DoD contracting officials often adhere to the standard allocation of IP rights under the DFARS142—to avoid the risk of future IP deficiencies, and the blame for them. Second, DoD contracting officials generally receive inadequate training in technical data rights and the effective formulation of data rights strategies.143 Both are required to protect future use of technology and software by the DoD, and the latter is perhaps the most underappreciated. Extensive planning and coordination with program managers, legal advisors, and end users is required to ensure matters shaped by data rights received in a particular technology or software—like the flexibilities available for follow-on production—are addressed prior to the solicitation of a development contract.144 Without adequate training in managing this process, or in the topic of data rights itself, DoD contracting officials are often unclear about the mechanics of making an alternative data rights framework a reality or even when one is appropriate. This reality, along with the aforementioned structural incentives rewarding use of standard IP frameworks, reinforces the perception from within industry that IP allocation in defense contracting is a one-sided affair, in favor of the DoD.
Similar to rigid IP requirements, burdensome cost accounting standards (CAS) applicable to defense contracting are unsuitable for military space acquisitions. Under the FAR, U.S. government contracts and corresponding subcontracts are subject to CAS unless an exemption applies.145 In total, nineteen CAS exist. The scope of CAS coverage is determined by the dollar value of the contract or subcontract at issue and whether any recent federal work has been performed by the contractor.146 Full CAS coverage is triggered with award of a contract or subcontract valued at fifty million dollars or more, or an equivalent combined value of contracts and subcontracts awarded to a contractor in its preceding cost accounting period.147 Conversely, a subset of full CAS coverage, called “modified” CAS, is triggered with award of a contract or subcontract valued at $7.5 million or more (but less than $50 million), and also applies to contracts or subcontracts valued below $7.5 million that are awarded to a contractor still performing under a “triggering” contract or subcontract.148
These standards, which began to take effect in 1972, establish a uniform cost accounting system wholly unique to the U.S. government that aims to create predictable and accurate cost allocation by contractors.149 However, they also generate compliance burdens for companies by forcing them to maintain their accounting records in two separate ways—one for their work with the federal government and another for their commercial business operations.150 These compliance burdens generate significant manpower and resource allocation requirements, which cause many non-traditional suppliers to eschew defense contracting opportunities entirely.151 By example, “one non-traditional supplier determined that it would take fifteen to eighteen months and cost millions of dollars just to establish the separate cost accounting system needed to perform DoD contracting work.”152
Given the prevalence of non-traditional suppliers within the commercial space industry and their indispensable role in achieving space superiority, the deterrence effect caused by burdensome and mandatory CAS is especially concerning. Although a CAS exemption does exist for small businesses,153 no CAS exemption exists based solely on a company’s status as a non-traditional supplier. Hence, non-traditional suppliers that do not (or no longer) meet the Small Business Administration’s size standards154 often must comply with, and experience the burdens of, all CAS triggered under a federal contract. As the commercial space industry continues its exponential growth, more and more of its non-traditional suppliers will likely acquire the limited amount of federal contract work necessary to trigger CAS. With CAS triggered, these suppliers will be less inclined to seek out further FAR-based procurement opportunities with the USSF. Accordingly, keeping CAS in place for military space acquisitions improperly prioritizes uniformity in cost accounting over the pressing need to develop and acquire cutting-edge military space capabilities.
Another misalignment between the FAR and the needs of military space acquisitions is the FAR’s lack of flexible acquisition models accommodating collaboration from within industry. The FAR requires use of specific contract types, which include various versions of firm-fixed-price and cost-reimbursement contracts.155 However, regardless of the contract type used, a U.S. government requirement must be awarded entirely to one contractor, or split into sub-requirements and the sub-requirements awarded individually to multiple contractors.156 In either case, the U.S. government does not reap the benefits of collaboration from within industry unless two or more companies decide, on their own, to enter a joint venture and compete together for a government contract.157
By not allowing use of flexible acquisition models, the FAR stifles the U.S. government’s ability to foster—and benefit from—industry collaboration in federal procurement. The innovation possible with such collaboration (and which goes unrealized with use of FAR-based procurement) is perhaps best shown with consortia, which operate under the umbrella of OT authority (hereinafter “OT consortia”). OT consortia, which are discussed in detail later in this article, allow federal agencies to admit an unlimited number of companies into a contractor pool (known as a “consortium”) and harness their combined innovative talents towards solving important agency requirements.158 Hence, by shutting the door on OT consortia and other flexible acquisition models, the FAR limits the ability of the U.S. government to achieve innovative solutions through its acquisition efforts. This is harmful to the success of federal R&D acquisitions writ large and devastating to those conducted by the USSF due to the primacy of technology in the space warfighting domain.
In sum, the FAR’s attempt to satisfy numerous competing priorities is incongruent with the need to solely prioritize speed and innovation in military space acquisitions. Additionally, the structural delays, rigid IP requirements, and burdensome CAS inherent in FAR-based procurement undermine the USSF’s ability to partner with non-traditional suppliers and rapidly acquire the cutting-edge military space capabilities necessary to achieve space superiority. Finally, the lack of flexible acquisition models under the FAR unnecessarily handcuffs the United States from leveraging industry-wide collaboration in Space Race 2.0. For these reasons, an alternative acquisition system for the USSF is required.
To effectively counter accelerating efforts by China and Russia to exploit, deny, and disrupt the strategic advantages of space, Congress must empower the USSF to rapidly acquire cutting-edge space technology, systems, and weaponry.159 Current space procurement efforts under the FAR take too long to develop and deploy and often fail to meet stated objectives.160 These deleterious outcomes for U.S. national security can be attributed, in large part, to the FAR and DFARS-based requirements discussed in Part III of this article, which slow acquisition speed and dissuade non-traditional suppliers (including those in the commercial space industry) from pursuing defense contracting opportunities. Use of OT authority does not implicate these requirements, providing flexibilities for federal agencies to efficiently partner with non-traditional suppliers and leverage their innovative talents. Therefore, “fixing” the broken military space procurement process will require Congress to remove it from the FAR, create stand-alone OT authority for the USSF, and mandate use of this new authority within an alternative acquisition system.161
Although Congress created OT authority over sixty years ago for NASA’s use during the Space Race, it has been used in recent years, and with increasing frequency, for DoD acquisitions.162 By statute,163 the DoD may use OT authority for research,164 experimental,165 or prototype166 projects. Qualifying prototype projects are those that are directly relevant to (1) “enhancing the mission effectiveness of military personnel and the supporting platforms, systems, components, or materials proposed to be acquired or developed,” or (2) “improv[ing] . . . platforms, systems, components, or materials in use by the armed forces.”167 Additionally, a qualifying prototype project must satisfy one of four conditions, which emphasize participation in the project by entities that do not traditionally contract with the DoD.168 Lastly, when a qualifying prototype project is awarded using “competitive procedures” and successfully completed, a follow-on production contract or transaction may be awarded to the project’s participant(s) on a sole source basis.169
Recognizing the value of OT authority in developing new military technology, Congress has progressively given the DoD greater flexibility for its use.170 In response, OT obligations within the DoD have soared—rising 712% between 2015 and 2019.171 An examination of the requirements for use of OT authority versus FAR-based procurement reveals several reasons why the former can be a more effective option and why it should be the standard for military space acquisitions.
Unlike FAR-based procurement, the use of OT authority does not attempt to satisfy numerous competing priorities, allowing for focused prioritization of acquisition speed and innovation. An example of the tremendous results achievable with such focused prioritization is Operation Warp Speed (OWS), the U.S. government’s coronavirus disease 2019 (COVID-19) vaccine development program. During OWS, the U.S. government leveraged OT authority to enter into an agreement with a private contract management firm, which in turn awarded vaccine development agreements to pharmaceutical companies belonging to a DoD consortium.172 These vaccine development agreements were awarded in as few as three weeks as use of OT authority did not implicate the FAR’s mandatory synopsis/solicitation timeframes and competition requirements.173 Under this framework, the U.S. government invested over eighteen billion dollars in vaccine development174 and unleashed industry innovation on a grave threat to our country’s safety, economy, and national security. The result: multiple vaccines to a novel coronavirus were developed in less than a year, a process which usually takes ten years for a single vaccine.175 Like America’s triumph in the original Space Race, General Schriever’s creation of the ICBM, and the NSSL program’s development of four launch vehicles, OWS exemplifies how solutions to complex national challenges may be rapidly achieved when the federal government does not restrain innovation with bureaucratic requirements or cost-efficiency measures. Mandatory use of OT authority and robust federal funding for military space acquisitions would allow the United States to achieve similar results in Space Race 2.0.
By avoiding structural delays inherent in FAR-based procurement, OT authority enables the acquisition speed necessary to outpace China’s and Russia’s ongoing development of military space capabilities. At the outset, use of OT authority allows a federal agency to reach award without complying with the FAR’s synopsis and solicitation requirements. The possibilities available with such an expedited award process can be seen with the USSF’s 2021 “Pitch Day” event, which allowed numerous startups and other non-traditional suppliers to “pitch” their proposals for meeting military space requirements.176 Over the course of the two-day event, the USSF awarded nineteen SBIR Phase II contracts totaling thirty-two million dollars177—including, as previously discussed, Lunewave’s satellite antenna development contract. Such rapid acquisition speed can also be achieved with OT acquisitions, and without the funding,178 IP,179 and other180 limitations of the SBIR program. By comparison, the exclusive use of FAR-based procurement would have delayed award of all nineteen contracts by at least sixty days in order to satisfy mandatory synopsis and solicitation requirements.181 In addition, companies would have been required to provide lengthy, tailored proposals for each contract opportunity they chose to pursue.182 These delays and inefficiencies inherent in FAR-based procurement do not exist when using OT authority—making it the better choice for military space acquisitions.
Along with expediting the award process, use of OT authority generally avoids litigation-induced delays in contractor performance and resulting harms to U.S. government operations.183 This is because OT authority does not implicate federal procurement statutes or regulations which, as a general rule, precludes GAO or COFC jurisdiction over challenges regarding its use.184 Although exceptions to this general rule exist, they apply only in limited circumstances and are infrequently utilized.185 Moreover, application of these exceptions in the proposed acquisition system could be reduced (with related congressional action) or would cease to exist based on the system’s structure. As a result, USSF requirements vital to protecting U.S. national security would seldom be held hostage during protracted litigation; a risk that is ever-present when using FAR-based procurement.
By example, one exception to this general rule is a federal agency’s failure to comply with statutory requirements for the use of OT authority. Such failure may create bid protest jurisdiction at the GAO under the rationale that a FAR-based procurement was impermissibly avoided.186 However, Congress can—and should—limit the applicability of this exception for acquisitions occurring within the proposed acquisition system. Specifically, Congress should not statutorily define “space technology,” “space systems,” or “space weaponry” in its grant of stand-alone OT authority to the USSF—thereby giving the USSF wide discretion to determine which acquisitions fall within these categories. Such wide discretion would reduce industry’s ability to successfully argue in bid protest litigation that an acquisition effort falls outside the scope of the USSF’s stand-alone OT authority. Additionally, Congress should not statutorily devise different types of OT authority available for military space acquisitions—as seen today with the DoD’s research, experimental, and prototype OT authorities.187 By not subdividing the USSF’s stand-alone OT authority in this manner, Congress can foreclose industry’s ability to challenge military space acquisitions on the basis that requirements for a particular type of OT authority were not followed.188
Another exception to the general rule that OT acquisitions avoid bid protest litigation concerns the use and operation of an OT agreement. Specifically, an OT agreement may inadvertently create bid protest jurisdiction if it (1) is used as part of a federal agency’s process to determine the need for acquisition (and thus the need for a potential FAR-based procurement) and (2) operates to exclude one or more of its bidders from consideration for a follow-on production contract.189 Under these circumstances, an OT agreement is considered “in connection with a procurement or a proposed procurement” under the Tucker Act—thus creating COFC jurisdiction over it.190
However, in the proposed acquisition system this exception would cease to exist. This is because the USSF would be statutorily required to use OT authority for all acquisition efforts (including production) that involve “space technology,” “space systems,” or “space weaponry,” and would be given wide discretion to determine when these broad categories apply to a particular acquisition effort. As a result, OT agreements falling within these broad categories could exclude unsuccessful bidders from follow-on production opportunities and never be “in connection with a procurement or a proposed procurement,” as those opportunities would—per congressional mandate—always involve the use of OT authority. Accordingly, COFC jurisdiction would be precluded in these situations.
In addition to avoiding structural delays, OT authority escapes FAR- and DFARS-based requirements that reduce interest from non-traditional suppliers in the commercial space industry. Without these requirements in place, the U.S. government can better access the innovative talent necessary to achieve space superiority. Requirements escaped with use of OT authority include, as previously discussed, minimum levels of technical data rights the U.S. government may agree to accept and specific processes for contractor cost accounting under federal contracts. When OT authority is used in place of FAR-based procurement, these topics may be fully negotiated on an agreement-by-agreement basis to best meet the needs of a particular acquisition effort. Consequently, exclusive use of OT authority for military space acquisitions would increase interest from the commercial space industry as concerns about IP allocation191 and mandatory CAS192 often deter the industry’s non-traditional suppliers from competing for FAR-based procurements. This increased interest would improve the innovative solutions available to the USSF to combat dangerous threats emanating from, or otherwise utilizing, the space domain.
Another requirement escaped with use of OT authority is the FAR’s mandate that an enumerated contract type be utilized for federal procurement. This mandate prohibits the use of many flexible acquisition models, like OT consortia, which can better foster innovation in U.S. government acquisitions.193 As previously mentioned, OT consortia empower federal agencies to bring numerous companies across an industry together and harness their combined innovative talents towards solving important agency requirements.194 OT consortia can vary in structure based on the specific needs of an acquisition initiative.195 However, they are normally built around a common theme and include three components.196 These components are: (1) a sponsoring federal agency; (2) a consortium management organization (CMO), selected by the agency;197 and (3) a consortium, frequently comprised of private companies.198
The foundation of OT consortia is usually a “base OT agreement” between the sponsoring federal agency and the CMO.199 This agreement is the product of negotiations between the agency and CMO, and often includes terms and conditions (e.g., IP rights and cost accounting requirements) that will govern future work performed by consortium members.200 Once a “base OT agreement” is established, companies are admitted into a consortium at the discretion of the sponsoring federal agency and after paying required consortium management fees.201 Thereafter, the sponsoring federal agency typically issues “calls” to the consortium’s members (through the CMO) soliciting white papers that outline proposals for solving agency requirements.202 In response to these “calls,” consortium members may submit a white paper individually or agree to work with other consortium members and submit a joint-white paper.203 After receiving white paper submissions, the sponsoring federal agency may select one or more consortium members to perform the requirement, delivering funding and a statement of work to them (often through the CMO).204
An example of the innovation achievable with use of OT consortia is the USSF’s Space Enterprise Consortium (SpEC). Established in 2017, SpEC is a consortium of approximately 600 commercial space companies, and mostly non-traditional suppliers, tasked with completing rapid space prototyping projects.205 SpEC is managed by a CMO206 and its members have developed innovative prototypes for various projects with important national security implications, such as the construction of a new GPS satellite and the expansion of tactical data links in LEO.207 Based on its early successes, SpEC’s budget was recently raised by Congress to twelve billion dollars over ten years.208 In the future, SpEC will continue to improve space prototype development and serve as an important reminder of why OT authority should be utilized for all military space acquisitions.209
It bears noting that use of multiple-award task order contracts (MATOCs)210 under the FAR can, like use of OT agreements, shorten award timelines—thereby increasing acquisition speed for task order requirements. Therefore, exclusive use of MATOCs in an alternative acquisition system for the USSF is worthy of consideration. However, despite their advantages, MATOCs contain several limitations that make them a less effective solution for military space acquisitions than OT agreements.
Unlike typical FAR-based contracts, MATOCs are awarded to two or more contractors, who later compete for task orders (within the scope of the MATOC) issued by the federal agency.211 Task order awards are subject to “fair opportunity” requirements under FAR Part 16,212 not typical “full and open competition” requirements under FAR Part 6.213 “Fair opportunity” requirements grant contracting officers “broad discretion” to develop “appropriate [task] order placement procedures”214 and encourage use of minimal industry submission requirements—flexibilities not available under “full and open competition.”215 These flexibilities may allow contracting officers to process task order awards under MATOCs faster than contract awards, a fact which seemingly addresses one of the primary needs for military space acquisitions, increased acquisition speed.
In reality, however, task orders remain subject to FAR-based requirements that would undermine the ability of MATOCs to expedite acquisition timelines within an alternative acquisition system. For example, because task order awards must comply with “fair opportunity” requirements,216 a federal agency’s failure to follow those requirements may be subject to protest.217 Hence, litigation risk can exist for each task order awarded under a MATOC—in addition to that existing for the MATOC itself, which remains subject to “full and open competition” requirements218 and the full scope of bid protest jurisdiction at the GAO and COFC. Additionally, MATOCs remain subject to the rigid IP frameworks,219 burdensome CAS,220 and inflexible acquisition models221 under the FAR and DFARS. These requirements, as previously discussed, often deter non-traditional suppliers from even competing for DoD contracting opportunities. This deterrence effect, and the litigation risk retained by MATOCs as FAR-based procurements, make this contract vehicle an inferior choice for military space acquisitions than OT agreements.
As with any systemic change effort, challenges exist to successfully implementing an OT-focused acquisition system for the USSF. The most significant of these challenges are (1) streamlining USSF OT policies to protect acquisition speed, (2) meaningfully developing space acquisition professionals to advance U.S. interests within the proposed acquisition system, and (3) achieving career specialization in military space acquisitions to build institutional expertise in the use of OT authority. Although not easy to overcome, these challenges do not outweigh the pressing need to implement an acquisition system capable of enabling victory in Space Race 2.0.
Adherence to federal agency policies affecting the use of OT authority can undermine the acquisition speed gained with the authority’s lack of structural procurement delays. This can make the award process for OT agreements as long as (or longer than) the award process for FAR-based contracts.222 Action is thus required to reduce unnecessary policy-driven delay within the proposed acquisition system. Specifically, Congress must require the USSF to file an annual report with the congressional defense committees delineating all of its policies for the use of OT authority and their underlying rationale.
Such mandatory congressional reporting would improve the efficiency and effectiveness of military space acquisitions in crucial ways. First, it would incentivize action by the Chief of Space Operations and the space acquisition executive223 to limit USSF policies for the use of OT authority to those that are truly necessary. Second, it would provide a basis for follow-on oversight hearings should Congress believe the USSF is unnecessarily reducing the speed of military space acquisitions with its internal policies. And third, such mandatory congressional reporting would motivate USSF senior leaders to create a culture that rewards intelligent risk-taking by OT agreements officers and supporting acquisition law attorneys (hereinafter collectively “space acquisition professionals”). This culture would act to reverse the existing incentive structure within the federal acquisition system that rewards risk avoidance by contracting officials.
Although congressional reporting on USSF OT policies would require legislative action to implement, such reporting is not without similar precedent. The DoD is already required by statute to report information on use of its OT authorities, making the proposed reporting requirement a logical extension of existing law.224 Since passage of the Fiscal Year 2019 National Defense Authorization Act (NDAA), the Secretary of Defense (SecDef) has been required to submit recurring annual reports to the congressional defense committees detailing, for each OT agreement: all non-U.S. government participants, their dates of participation, the amount of the transaction, and “other related matters the [SecDef] deems appropriate.”225 Furthermore, similar congressional reporting requirements have existed in recent years for the DoD—including a requirement for the SecDef to submit a report evaluating proposals for modifying or expanding the DoD’s OT authorities.226 Accordingly, an annual report detailing USSF OT policies would not only improve military space acquisitions but be consistent with current and past congressional reporting requirements.
When instituting and executing this reporting requirement, however, it will be important for decisionmakers to understand that not all OT policies are superfluous. Some are valued added or even necessary—making their inclusion in an OT-focused acquisition system appropriate. Consider, for example, three recommendations made by the DoD Inspector General during a recent audit of OT consortia: (1) establish requirements to vet consortium members and identify which members meet applicable security requirements for future opportunities, (2) coordinate with the General Services Administration to more accurately capture data related to the use of consortia, and (3) ensure contracting personnel maintain documentation for major decisions affecting the award of OT agreements to specific consortium members.227 Following these recommendations requires adding policies for the use of OT authority, but for sound reasons: to, respectively, promote operational security, gain necessary oversight over the number and dollar value of OT agreements awarded, and memorialize the rationale of OT agreements officers in the event of a future protest.228 Such value-added OT policies are in stark contrast to others, like heightened approval levels and mandated use of FAR source selection procedures, which seek to mitigate risk but only slow the acquisition process and communicate institutional distrust of lower-level contracting officials.229 For the proposed acquisition system to be effective, the USSF must avoid enacting policies with compliance burdens that outweigh associated benefits for military space acquisitions, while enacting others that strike the appropriate balance. Instituting a congressional reporting requirement on USSF OT policies would enable success in this endeavor.
In addition to streamlining OT policies, the USSF must develop “experienced and capable government representatives” to advance U.S. interests in the proposed acquisition system.230 Because complex topics like IP rights, CAS, and contract structure are fully negotiable in OT acquisitions, the U.S. government is at increased risk of not fulfilling its requirements when it uses OT authority in lieu of FAR-based procurement.231 This increased risk is further magnified with the use of OT consortia due to their varying structures and the greater number of private entities involved.232 Hence, the exclusive use of OT authority for military space acquisitions will require space acquisition professionals to possess a level of business acumen and judgment that enables them to “operate in the relatively unstructured environment of OTs.”233 To build these essential capabilities, the USSF must meaningfully develop current and future space acquisition professionals through robust training programs and industry internships.
Meaningful development of these professionals begins with embracing an innovative approach to training. Rather than working within the traditional framework of military schoolhouses, the USSF must partner with academia to create an intensive training program for space acquisition professionals.234 This training program should cover (1) the panoply of issues negotiable in each OT agreement (e.g., IP rights, CAS, and contract structure), (2) advanced negotiation strategies, and (3) techniques for effectively drafting (or reviewing) OT agreements. Moreover, it should feature an instructor cadre of leading government procurement professors from academia and experienced space acquisition professionals to enable both academic study and application of training material through real-world case studies. Finally, it should be located at a prominent civilian academic institution with an established government procurement program to ensure space acquisition professionals benefit from the highest quality learning experience available.
Utilizing such a training program would yield several important benefits. On a foundational level, it would obviate the need to invest extensive time and resources towards creating a USSF schoolhouse for space acquisition professionals. In addition, it would provide these professionals with critical exposure to the commercial space industry. This is because government procurement programs within academia actively foster collaboration between the private sector and the U.S. government through industry discussion events, conferences, and related functions, at which issues of concern and potential solutions are openly discussed.235 These engagement opportunities could be extended to the commercial space industry, thereby exposing space acquisition professionals to the concerns of the industry’s non-traditional suppliers impacting military space acquisitions.236 Finally, the proposed training program would produce highly capable space acquisition professionals. Learning from the best in both academia and the USSF acquisition community would enable these professionals to develop the requisite knowledge and practical skills to successfully operate within an OT-focused acquisition system. Military schoolhouses, which cannot leverage resources from academia or foster collaboration with industry to the same degree, would struggle to build these essential capabilities.
Partnering with academia to train space acquisition professionals would also align with the USSF’s own revised approach to professional military education (PME). In a break with its fellow military service branches, the USSF has announced that it will partner with a civilian academic institution to provide PME programs for its mid- and senior-level officers, rather than creating a USSF schoolhouse, or utilizing an existing military schoolhouse, to provide such education.237 These PME programs will be housed within the School of Advanced International Studies (SAIS) at Johns Hopkins University (JHU), and will occur at JHU’s satellite campus in Washington D.C.238 In addition, they will feature instructors from both SAIS and the USAF’s schoolhouse (Air University), who will teach “multi-disciplinary, strategy-focused offerings in ethics and leadership, international security, and international public policy.”239 By electing to partner with a prominent academic institution to conduct officer PME programs, the USSF has recognized the value of leveraging resources from within academia to educate and develop its officer corps. It would be wise to execute a similar strategy for training and developing its space acquisition professionals, whose performance will greatly influence whether the United States prevails in Space Race 2.0.
Beyond an innovative approach to training, meaningful development of space acquisition professionals requires internships with the commercial space industry. These immersive experiences are critical to better understand the non-traditional suppliers that are leading the technological revolution within the space domain. They would also likely yield invaluable insights into how partnerships may be forged with the commercial space industry to develop and acquire advanced military space capabilities. Both of these knowledge areas are essential to the success of space acquisition professionals—and, by extension, the nascent USSF.
A useful starting point in developing an internship program for space acquisition professionals is the USAF’s Education with Industry (EWI) program. EWI is a ten-month internship program with “top tier public and private companies” that allows a select group of mid-grade USAF officers to “embed with an industry team” and “develop the necessary competencies, skills, knowledge, and abilities” to “better partner with industry in the future.”240 An internship program for space acquisition professionals should utilize a similar construct as the USAF’s EWI program—to include a similar duration, focus on gaining immersive experience, and limit on participation (to ensure reduced manning levels caused by the program do not negatively impact mission operations). However, it should also be tailored to the distinct needs of the USSF in Space Race 2.0. For example, internships should occur only with non-traditional suppliers in the commercial space industry. Additionally, work performed during internships should develop relevant skillsets such as negotiating, drafting, and reviewing contracts. Finally, implementation of the internship program should include a mandate that a certain percentage of graduates serve as instructors (for at least two years) within the aforementioned training program for space acquisition professionals. This mandate would ensure insights gained by the select number of internship participants are shared with all space acquisition professionals.
Along with streamlining OT policies and meaningfully developing space acquisition professionals, career specialization is required to effectuate the proposed acquisition system. Building institutional expertise in the use of OT authority will require space acquisition professionals to work in military space acquisitions for the duration of their careers. Although such career specialization is currently available for some space acquisition professionals, it is not available for all—a fact which will drive the need for certain force development changes.241 The most significant of these changes will be needed for the military attorneys (known as judge advocates) providing legal advice within the proposed acquisition system. Achieving career specialization for these individuals will require organizational restructuring within the Department of the Air Force.242 Specifically, it will require congressional action to create a USSF Judge Advocate General’s (JAG) Corps.243
This congressional action is necessary because the USAF JAG Corps, which currently provides exclusive legal support to the USSF, utilizes a force development model for its judge advocates that discourages career specialization in specific areas of the law. USAF judge advocates are developed to become “generalists” with “broad experience . . . in the overarching legal domains of military justice, civil law, and operational law.”244 Although appropriate to develop staff judge advocates who advise commanders on issues across “the overarching legal domains,”245 this generalist force development model is unsuitable to develop judge advocates who support the proposed acquisition system. It is also unlikely that the USAF JAG Corps would voluntarily deviate from this generalist force development model to allow a subset of its judge advocates to specialize in military space acquisitions. This is made evident by the USAF JAG Corps’ past resistance to career specialization for judge advocates, including its vigorous opposition to the creation of a criminal litigation career track.246 Accordingly, creation of a separate USSF JAG Corps is necessary to achieve career specialization for judge advocates supporting the proposed acquisition system.
Although a detailed framework for its structure is outside the scope of this article, a USSF JAG Corps should have a primary mission of supporting military space acquisitions.247 Furthermore, it should be staffed by judge advocate and civilian attorney transfers from the USAF JAG corps to quickly develop initial operating capability. Thereafter, sustainment of a USSF JAG Corps should be accomplished using its own independent recruiting and accessions programs.248 These programs should, to the greatest extent possible, target attorneys with relevant experience—such as those who have worked as legal advisors within the commercial space industry or as OT agreements officers within the DoD.249 Such an approach to recruiting and accessions would increase the baseline knowledge of new USSF judge advocates and civilian attorneys supporting the proposed acquisition system. As a result, the USSF JAG Corps would be better able to meet the growing demand for legal support in Space Race 2.0.
Lastly, it bears noting that creation of a USSF JAG Corps is justified by compelling reasons other than achieving career specialization. First, it would be consistent with precedent for accommodating the legal needs of a specialized service within a military department—as seen with the existence of a Marine Corps’ Judge Advocate Division within the Department of Navy.250 Second, it would align with the USSF’s responsibilities, which include “acquiring military space systems” and “developing military space professionals.”251 And third, it would comport with the emergence of space as “a new and indisputable warfighting domain” with distinct legal issues affecting military operations.252 Legal issues like devising spacepower doctrine253 that complies with the law of war and applying the U.N. Charter’s limitations on the use of force254 to space-based attacks are inherent to the military and thus require military legal counsel. Therefore, creation of a USSF JAG Corps under the leadership of a senior USSF judge advocate is appropriate. This organizational structure would best meet the legal needs of the USSF and align with the structures of all other JAG Corps within the U.S. military.255
Chronic underfunding of U.S. space programs, global overreliance on capabilities from the space domain, and aggressive space militarization efforts by China and Russia have created Space Race 2.0—a race to achieve space superiority through the acquisition of cutting-edge space technology, systems, and weaponry. For the United States to prevail, Congress must equip the USSF with an acquisition system that is capable of efficiently harnessing the innovation engine of the commercial space industry to achieve U.S. security objectives in space. An OT-focused acquisition system would avoid inefficient procedures for advertising federal procurement opportunities, and largely avoid litigation-induced delays in contractor performance, which undermine the U.S. government’s ability to achieve speed through its acquisition efforts. In addition, an OT-focused acquisition system would allow for flexibilities in the determination of IP rights, CAS, and contract structure that are necessary for the USSF to partner with—and leverage the innovative talents of—non-traditional suppliers in the commercial space industry. These benefits are not realized under the current FAR-based procurement system and would not be achievable with the exclusive use of MATOCs for military space acquisitions.
For this new acquisition system to be effective, however, Congress must institute mandatory congressional reporting by the USSF on its OT policies. This action is necessary to limit the USSF’s enactment of superfluous OT policies, which slow acquisition speed, and to create a USSF culture that encourages intelligent risk taking in the execution of military space acquisitions. Furthermore, the USSF must meaningfully develop its space acquisition professionals through an intensive training program with academia and internships with the commercial space industry. These experiences are needed to arm space acquisition professionals with the requisite knowledge, practical skills, and insights to forge effective partnerships between the USSF and non-traditional suppliers in the commercial space industry. Finally, career specialization must be made available for all space acquisition professionals to develop institutional expertise in the use of OT authority. To ensure such specialization is available for USAF judge advocates, and to best meet the legal needs of the USSF as a warfighting organization, Congress must create a separate USSF JAG Corps. This new JAG Corps should be acquisition focused, initially comprised of judge advocate and civilian attorney transfers from the USAF JAG corps, and empowered to develop tailored recruiting and accessions programs to meet its unique workforce needs.
Failure to take these actions may cause the United States to fall further behind in Space Race 2.0 as China and Russia continue to gain military advantages in the space warfighting domain. These advantages, while significant today, may prove decisive across all warfighting domains tomorrow. As the “new high ground in modern warfare,”256 space provides unique opportunities to degrade—and potentially defeat—the ability of adversaries to navigate or project military power in the traditional land, air, and sea warfighting domains. Although the full extent of space’s impact on future wars is unknown, China’s and Russia’s increasing efforts to militarize space make this much clear: we would be wise to finally heed General Schriever’s warning that our national security may one day depend upon our achieving space superiority.257 Accordingly, it is imperative that the United States act now to secure its technological edge in space, which is necessary to achieve—and maintain—U.S. superiority in the most consequential warfighting domain.
1. Bernard A. Schriever, Major Gen., U.S. Air Force, Speech at the Astronautics Symposium: ICBM—A Step Towards Space Conquest (Feb. 19, 1957).
2. Sputnik and the Dawn of the Space Age, Nat’l Aeronautics & Space Admin., https://history.nasa.gov/sputnik.html (last visited Mar. 15, 2023) [https://perma.cc/QLC5-6QQZ].
3. See The Space Race, History (Feb. 21, 2020), https://www.history.com/topics/cold-war/space-race [https://perma.cc/M5TU-VGMN].
4. OT Authority History, Other Transaction (OT) Guide, Def. Acquisition Univ., https://aaf.dau.edu/aaf/ot-guide/history/#:~:text=The%20National%20Aeronautics%20and%20Space,)%20(See%20Myth%202 (last visited Jan. 31, 2023) [https://perma.cc/9PH4-VB8B].
5. National Aeronautics and Space Act of 1958, Pub. L. No. 85-568, §§ 202(a), 203(b)(5), 72 Stat. 426 (prior to 1959 amendment).
6. See Ellen Pawlikowski et al., Space: Disruptive Challenges, New Opportunities, and New Strategies, Strategic Studs. Q., Spring 2012, at 27, 30 (describing such congressional sentiment within the broader context of space competition between the U.S. and Soviet Union during the 1960s and 1970s).
7. See Space Data Insights: NASA Budget, 1959-2020, Space Found., https://www.thespacereport.org/uncategorized/space-data-insights-nasa-budget-1959-2020 (last visited Dec. 27, 2022) [https://perma.cc/J62M-YSHE]. To be clear, increasing federal investments in the United States Space Force (USSF) since its creation in December 2019 have mitigated the impact of reduced federal investments in NASA. See, e.g., National Defense Authorization Act for Fiscal Year 2023, Pub. L. No. 263, §§ 4101, 4201, 4301, 136 Stat. 2395 (2022) (authorizing a combined $24.85 billion in procurement; research, development, test, and evaluation; and operation and maintenance funding for the USSF). However, federal investment in the USSF for Fiscal Year (FY) 2023 still represents only 0.40% of annual U.S. government spending—putting combined investment in NASA and the USSF for FY 2023 well below 1% of annual U.S. government spending. See id.; Fiscal Data: How Much Has the U.S. Government Spent This Year, U.S. Dep’t of Treasury, https://fiscaldata.treasury.gov/americas-finance-guide/federal-spending (last visited Dec. 29, 2022) (explaining mandatory, discretionary, and supplemental expenditures by the U.S. government totaled $6.27 trillion in FY 2022) [https://perma.cc/AM8X-CSXS]; Jeff Foust, Fiscal Year 2023 Omnibus Bill Provides $25.4 Billion for NASA, Space News (Dec. 20, 2022), https://spacenews.com/fiscal-year-2023-omnibus-bill-provides-25-4-billion-for-nasa (explaining NASA’s budget for FY 2023 is $25.4 billion (or 0.41% of total U.S. government expenditures in FY 2022)) [https://perma.cc/8J6K-NZAP].
8. See Charlie Campbell, From Satellites to the Moon and Mars, China Is Quickly Becoming a Space Superpower, Time (July 17, 2019), https://time.com/5623537/china-space [https://perma.cc/25ED-AEJL] (describing China’s extensive development of space capabilities since the turn of the twenty-first century); Bruce McClintock, The Russian Space Sector: Adaptation, Retrenchment, and Stagnation, 10 Space & Def. 1, 5–7 (2017), https://www.rand.org/content/dam/rand/pubs/external_publications/EP60000/EP67235/RAND_EP67235.pdf [https://perma.cc/UQ8T-BJCF] (describing Russia’s substantial investment in the development of space capabilities following the end of the Space Race and until 1990, when government funding shortages began to limit the further advancement of Russian space programs).
9. See Namrati Goswami, Waking Up to China’s Space Dream, The Diplomat (Oct. 15, 2018), https://thediplomat.com/2018/10/waking-up-to-chinas-space-dream [https://perma.cc/J8F4-YKXA] (describing the CCP’s development of “asymmetric capabilities” to take advantage of the U.S. military’s overt dependence on space assets in future armed conflicts and to “enhance the national rejuvenation of the Chinese nation” on the global stage).
10. See U.S.–China Econ. & Sec. Review Comm’n, China’s Pursuit of Space Power Status and Implications for the United States 3 (2019) (“Beijing consistently invests high levels of funding and political will to its space program, which has driven its steady progress in achieving important milestones.”).
11. See The State Council, Guiding Opinions of the State Council on Innovating the Investment and Financing Mechanisms in Key Areas and Encouraging Social Investment (2014) (enabling private investment in Chinese space companies); State Council, Opinions of the General Office of the State Council on Promoting the Deep Development of Military-Civil Fusion in the National Defense Science and Technology Industry (2017) (calling for joint military-civilian development of reusable launch vehicles, nuclear-powered space equipment, and remote sensing satellites).
12. See Michael Sheetz, China Increases Private Investment in Emerging Private Space Industry, CNBC (Oct. 10, 2018), https://www.cnbc.com/2018/10/10/china-increases-investment-in-emerging-private-space-industry.html [https://perma.cc/U2LA-S27W] (describing private investment in China’s commercial space industry); see also Lingling Wei, China’s Xi Ramps Up Control of Private Sector. ‘We Have No Choice But to Follow the Party,’ Wall St. J. (Dec. 10, 2020), https://www.wsj.com/articles/china-xi-clampdown-private-sector-communist-party-11607612531 [https://perma.cc/YAN6-CDNJ] (describing measures used by the CCP to exercise state control over private industry).
13. See James Black, Our Reliance on Space Tech Means We Should Prepare for the Worst, Def. News (Mar. 12, 2018), https://www.defensenews.com/space/2018/03/12/our-reliance-on-space-tech-means-we-should-prepare-for-the-worst [https://perma.cc/DV8T-RX28].
14. The scope of this alternative acquisition system should include the items, components, and processes, as well as the underlying software, necessary for the USSF to acquire cutting-edge space technology, systems, and weaponry. At a minimum, this would include related research, experimentation, prototyping, production, and maintenance efforts. Such an acquisition system is consistent with what should be the myopic focus of the USSF—rapidly acquiring the space technology, systems, and weaponry necessary to achieve space superiority—and the service’s lean operational construct, which are both discussed later in this article. Of note, this alternative acquisition system should not cover the procurement of generic supplies or generic contracting support services by the USSF—which would remain subject to the FAR-based procurement system.
15. Dan Glass, What Happens If GPS Fails?, The Atlantic (June 13, 2016), https://www.theatlantic.com/technology/archive/2016/06/what-happens-if-gps-fails/486824 [https://perma.cc/ZHS5-2C7B].
16. Robert Silk, All Commercial Aircraft in U.S. Will Soon Have GPS Technology, Travel Wkly. (Dec. 17, 2019), https://www.travelweekly.com/Travel-News/Airline-News/Commercial-aircraft-GPS-technology [https://perma.cc/CD8J-VHME].
17. Glass, supra note 15.
18. See Brad Plumer, Have We Become Too Reliant on GPS? This Satellite Expert Thinks So, Vox (Apr. 10, 2016), https://www.vox.com/2016/4/10/11379698/gps-navigation-brain-problems [https://perma.cc/5V38-XHTC] (arguing that overreliance on PNT capabilities for personal transportation has caused deleterious effects for basic human navigation skills).
19. Glass, supra note 15.
20. Id.
21. See Lynn E. Davis et al., RAND Corp., Armed and Dangerous? UAVs and U.S. Security, 1–2 (2014) (discussing how the U.S. military now routinely utilizes PNT capabilities to track the movements and activities of enemy targets, maneuver remotely piloted aircraft to strike those targets without endangering American pilots, and employ precision-guided munitions to limit collateral damage during such strikes).
22. See Protecting America’s Global Positioning System: Military Use of GPS, U.S. Dep’t of Def., https://www.defense.gov/Spotlights/Protecting-GPS (last visited Mar. 18, 2022) [https://perma.cc/4BCD-REUF] (discussing how the United States military relies upon PNT capabilities to detect, monitor, and neutralize over-the-horizon intercontinental ballistic missile and hypersonic missile attacks against the U.S. homeland and U.S. interests).
23. In U.S. joint military doctrine, a center of gravity (COG) is “the source of power that provides moral or physical strength, freedom of action, or will to act.” Dep’t of Def., Joint Pub. 5-0, Joint Planning, GL-6 (2020) (emphasis added). Here, satellite systems and associated computer networks are a COG that enable a military force to coordinate attacks, navigate, and communicate. If these systems and networks are attacked, a military’s freedom of action is degraded.
24. See Air & Space Intel. Ctr., Competing in Space 20 (2018).
25. U.S. Senate Armed Serv. Comm., Advance Policy Questions for Lloyd J. Austin Nominee for Appointment to be Secretary of Defense 56 (2019).
26. See Jon Harper, China, Russia May Soon Field More Capable Counterspace Weapons, DIA Says, Fed Scoop (Apr. 12, 2022), https://fedscoop.com/china-russia-may-soon-field-more-capable-counterspace-weapons-dia-says [https://perma.cc/2WC6-EMGV]; see generally Carin Zissis, China’s Anti-Satellite Test, Council on Foreign Rel. (Feb. 22, 2017), https://www.cfr.org/backgrounder/chinas-anti-satellite-test [https://perma.cc/JSV6-J2GC] (discussing China’s development and testing of ASAT weapons); see also Hanneke Weitering, Russia Has Launched an Anti-Satellite Missile Test, US Space Command Says, Space.com (Dec. 16, 2020), https://www.space.com/amp/russia-launches-anti-satellite-missile-test-2020 [https://perma.cc/VVF8-8YKP] (discussing Russia’s development and testing of ASAT weapons).
27. Michael P. Gleason & Peter L. Hays, Ctr. for Space Pol’y & Strategy, Space Agenda 2020: A Roadmap for Assessing Space Weapons 5 (2020).
28. See A.B.A. Standing Comm. on L. & Nat’l Sec., Defending America’s Place in Space: Future Threats and Rules, YouTube (Jan. 27, 2019), https://www.youtube.com/playlist?list=PLMbsJ5 y3W20DU1rHBRBvhzHokM7zfrDzc [https://perma.cc/L4YE-69YV]; Jonathan O’Callaghan, Russia Accused of Firing ‘Anti-Satellite Weapon’ From One of Its Satellites in Space, Forbes (July 24, 2020), https://www.forbes.com/sites/jonathanocallaghan/2020/07/24/worrisomerussia-accused-of-firing-a-projectile-in-space-from-one-of-its-satellites/?sh=5df7494465a5 [https://perma.cc/S5SR-LFHF].
29. Kevin Pollpeter et al., China Aerospace Stud. Inst., China’s Space Narrative 14 (2020).
30. Id. at 15; Sandra Erwin, U.S. Space Force to Step Up Protection of Satellite Ground Systems in the Wake of Russia’s Cyber Attacks, SpaceNews (May 19, 2022), https://spacenews.com/u-s-space-force-to-step-up-protection-of-satellite-ground-systems-in-the-wake-of-russias-cyber-attacks.
31. Pollpeter, supra note 29, at 14; Erwin, supra note 30.
32. William J. Broad, How Space Became the Next ‘Great Power’ Contest Between the U.S. and China, N.Y. Times (Jan. 24, 2021), https://www.nytimes.com/2021/01/24/us/politics/space-war-takeaways-us-china.html [https://perma.cc/3YK9-YCLV].
33. Christian Brose, The Kill Chain: Defending America in the Future of High-Tech Warfare 33 (2020).
34. Namrati Goswami, The Economic and Military Impact of China’s BeiDou Navigation System, The Diplomat (July 1, 2020), https://thediplomat.com/2020/07/the-economic-and-military-impact-of-chinas-beidou-navigation-system [https://perma.cc/43UT-SGWN].
35. Id.
36. Anti-access refers to “those actions and capabilities, usually long-range, designed to prevent an opposing force from entering an operational area.” U.S. Dep’t of Def., Joint Operational Access Concept Version 1.0. at i (2012). Area Denial refers to “those actions and capabilities, usually of shorter range, designed not to keep an opposing force out, but to limit its freedom of action within the operational area.” Id.
37. Pollpeter, supra note 29, at 56.
38. See Jordan Wilson, U.S.-China Econ. & Sec. Rev. Comm’n, China’s Alternative to GPS and its Implications for the United States 7 (2017) (describing China’s ability to attack GPS satellites because it has a separate PNT satellite system in Beidou); see also Charles Pope, Kendall, Brown, Raymond Outline Changes Necessary to Defend the Nation, the Need to Go Fast and Succeed, U.S. Air Force (Mar. 10, 2022), https://www.af.mil/News/Article-Display/Article/2963003/kendall-brown-raymond-outline-changes-necessary-to-defend-the-nation-the-need-t [https://perma.cc/KMJ3-NB2X] (describing quoted remarks made by Gen. John Raymond, Chief of Space Operations, USSF).
39. Of note, China has gone so far as publicly expressing this sentiment—publishing in a 2013 space operations report that, “Whoever is the strongman of military space will be the ruler of the battlefield . . . .” See Pollpeter, supra note 29, at 56.
40. See China in Space: A Strategic Competition: Hearing Before the U.S.-China Econ. & Sec. Rev. Comm’n (2019) (statement of William Roper, Assistant Sec’y of the Air Force for Acquisition, Tech., & Logistics).
41. According to USSF doctrine, space superiority is “a relative degree of control in space of one force over another that would permit the conduct of its operations without prohibitive interference from the adversary while simultaneously denying their opponent freedom of action in the domain at a given time.” U.S. Space Force, Spacepower: Doctrine for Space Forces 30 (2020).
42. See Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, U.N. Off. for Outer Space Affs., https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introouterspacetreaty.html (last visited Feb. 8, 2023) [https://perma.cc/4Y9K-T432].
43. See Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies arts. I–III, Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205.
44. See id. art. XVII.
45. See In re. South China Sea Arbitration (Phil. v. China), Award, 2013 PCA Case Repository 19, ¶ 1203 (July 12).
46. See Luis Martinez, Why the US Navy Sails Past Disputed Artificial Islands Claimed by China, ABC News (May 6, 2019), https://abcnews.go.com/amp/Politics/us-navy-sails-past-disputed-artificial-islands claimed/story?id=60993256 [https://perma.cc/8BAB-A8RS].
47. See Oriana Mastro, Military Confrontation in the South China Sea: Contingency Plan Memorandum No. 36, Council on Foreign Rels. (May 21, 2020), https://www.cfr.org/report/military-confrontation-south-china-sea [https://perma.cc/83US-ZS99] (discussing how Chinese control of the South China Sea would be a “significant step toward displacing the United States from the Indo-Pacific region,” and how China seeks to use international legal arguments to advance its territorial claims in the region); see also Statute of the International Court of Justice art. 38, ¶ 1, June 26, 1945, 33 U.N.T.S. 933 (recognizing customary international law (CIL) as one of the three principal sources of international law); Continental Shelf (Libya v. Malta), 1985 I.C.J. 13, ¶ 27 (June 3) (explaining the two elements of CIL are (1) state practice and (2) opinio juris—a belief by the state that a general practice is accepted under international law).
48. Todd Moulton, Preventing War in the South China Sea, J. Indo-Pac. Affs. (Aug. 1, 2022), https://www.airuniversity.af.edu/JIPA/Display/Article/3111133/preventing-war-in-the-south-china-sea/#sdendnote8sym [https://perma.cc/5C2B-EXRK].
49. See Mastro, supra note 47.
50. See U.N. Charter art. 2, ¶ 4 (prohibiting “the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations” by all U.N. members).
51. Sarah Pruitt, How a Five-Day War with Georgia Allowed Russia to Reassert Its Military Might, History (Sept. 4, 2018), https://www.history.com/news/russia-georgia-war-military-nato [https://perma.cc/8FK8-JXSM].
52. Steven Pifer, Crimea: Six Years After Illegal Annexation, Brookings Inst. (Mar. 17, 2020), https://www.brookings.edu/blog/order-from-chaos/2020/03/17/crimea-six-years-after-illegal-annexation [https://perma.cc/R9KS-EKLE].
53. Dan Bilefsky et al., The Roots of the Ukraine War: How the Crisis Developed, N.Y. Times (Mar. 11, 2022), https://www.nytimes.com/article/russia-ukraine-nato-europe.html [https://perma.cc/3LQZ-DPLR].
54. Russia’s illegal annexation of Crimea in 2014 provides perhaps the best example of this phenomenon. Through this illegal annexation, Russia commandeered a key port in the Crimean city of Sevastopol that provides it with access to the Mediterranean Sea. See Annabelle Timsit et al., Why Crimea is So Important in the Russia-Ukraine War, Wash. Post (Aug. 18, 2022), https://www.washingtonpost.com/world/2022/08/18/crimea-russia-ukraine-war [https://perma.cc/VH2G-NPXQ]. The headquarters of Russia’s Black Sea Fleet is now based in Sevastopol, and Russia used this strategic location in 2022 to conduct a wartime naval blockade that halted trade at Ukrainian ports during its full-scale invasion of the country. Id.
55. See Progressive Mgmt., China in Space: A Strategic Competition? 2019 Comprehensive Analysis of Chinese Scientific and Military Spaceflight Programs, Surveillance Systems, Human and Moon Missions, Exploration Ambitions 8 (2019) (referencing one Chinese space official’s declaration that “[i]f we regard space as the Earth, then . . . Mars is the Spratly Islands or reefs”); Goswami, supra note 9 (referencing another Chinese space official’s statement that, “[t]he universe is an ocean, the moon is the Diaoyu Islands, Mars is Huangyuan Island” and explaining China’s desire to establish outposts on the Moon and Mars).
56. See Goswami, supra note 9.
57. See Andrew Chatzky et al., Space Exploration and U.S. Competitiveness, Council on Foreign Rels. (Sept. 23, 2021), https://www.cfr.org/backgrounder/space-exploration-and-us-competitiveness [https://perma.cc/XF36-HS2X].
58. See Michael Sheetz, An Investor’s Guide to Space, Wall Street’s Next Trillion-Dollar Industry, CNBC (Dec. 13, 2019), https://www.cnbc.com/2019/11/09/how-to-invest-in-space-companies-complete-guide-to-rockets-satellites-and-more.html [https://perma.cc/45AQ-52TS] (discussing how most Wall Street analysts project the commercial space industry will be worth several trillion dollars between 2030 and 2040).
59. See Matthew Weinzierl & Mehak Sarang, The Commercial Space Age Is Here, Harv. Bus. Rev. (Feb. 12, 2021), https://www.hbs.edu/faculty/Pages/item.aspx?num=612664-5 [https://perma.cc/HL8A-KLPU]; Andrea Thompson, Medicine in Space: What Microgravity Can Tell Us About Human Health, Sci. Am. (Aug. 7, 2019), https://www.scientificamerican.com/article/medicine-in-space-what-microgravity-can-tell-us-about-human-health [https://perma.cc/VHC8-ADVL].
60. See Albert Defusco, Affordable Access to Low Earth Orbit, 4(4) Def. Sys. Info. Analysis Ctr. J., Fall 2017, at 6–7.
61. Id.
62. See Linda Slapakova, Strategic and Legal Implications of Emerging Dual-Use ASAT Systems, NATO Legal Gazette, Dec. 2021, at 179–80.
63. Id.
64. Stephen M. McCall, Cong. Rsch. Serv., R46211, National Security Space Launch 1 (2020).
65. Id. at 8.
66. Id.
67. Id. at 9.
68. Id. at 2.
69. Catherine Thorbecke, SpaceX and ULA Score Multi-Million Dollar Military Launch Contract, ABC News (Aug. 10, 2020), https://abcnews.go.com/Business/spacex-ula-score-multi-million-dollar-miliary-launch [https://perma.cc/N3LQ-ACZY].
70. See Chatzky et al., supra note 57.
71. See generally Theresa Hitchens, US, Allies Agree on Threats in Space but Struggle with Messaging, Breaking Def. (Sept. 11, 2020), https://breakingdefense.com/2020/09/us-allies-agree-on-threats-in-space-but-struggle-with-messaging [https://perma.cc/ETR5-VCHT] (discussing European countries that have not accepted a need to develop offensive space capabilities).
72. William Shelton et al., Rand Corp., A Clean Sheet Approach to Space Acquisition in Light of the New Space Force 2 (2021).
73. Lunewave, Inc., Linkedin, https://www.linkedin.com/company/lunewave (last visited Dec. 2, 2022) [https://perma.cc/8TGN-GMHQ].
74. See generally Lunewave, Inc., https://lunewave.com (last visited Dec. 2, 2022) [https://perma.cc/XU5Y-BR63].
75. The SBIR program authorizes federal investments to assist small businesses with research and development efforts, with the goal of strengthening the competitive free enterprise system and the U.S. economy. See 15 U.S.C. § 638. There are three phases to the SBIR program, generally referred to as: Concept Development (Phase I), Prototype Development (Phase II), and Commercialization (Phase III). See Small Business Set-Asides vs. SBIR/STTR Programs, Def. Acquisition Univ., https://aaf.dau.edu/aaf/contracting-cone/far-19-v-sbir (last visited Nov. 22, 2022) [https://perma.cc/484Z-P2F5]. The contract awarded to Lunewave was a SBIR Phase II contract. See Sandra Erwin, Space Force Awards $32 Million in Contracts to Startups and Small Businesses, Space News (Aug. 20, 2021), https://spacenews.com/space-force-awards-32-million-in-contracts-to-startups-and-small-businesses [https://perma.cc/J7DY-XQFE].
76. Erwin, supra note 75.
77. Id. Shark Tank is a long-running TV show where “hopeful entrepreneurs” pitch their business ideas to a panel of accomplished business executives with the goal of receiving investments to start, grow, or save their businesses. Shark Tank, CNBC, https://www.cnbc.com/shark-tank (last visited Dec. 7, 2022) [https://perma.cc/VD4L-9TGD].
78. Slapakova, supra note 62.
79. David Vergun, New Program Helps Dual-Use Hardware Startups Accelerate Product Development, Dep’t of Def. News (Sept. 13, 2021), https://www.defense.gov/News/News-Stories/Article/Article/2772358 [https://perma.cc/BLK5-6V45].
80. Broad, supra note 32.
81. Michael Kelly, The Air-Power Revolution, The Atlantic (Apr. 1, 2002), https://www.theatlantic.com/magazine/archive/2002/04/the-air-power-revolution/302462 [https://perma.cc/32MY-HGWL].
82. Gleason & Hays, supra note 27, at 3.
83. See Shelton et al., supra note 72, at 61.
84. Id.
85. FAR 1.101.
86. FAR 1.102.
87. Steven L. Schooner, Desiderata: Objectives for a System of Government Contract Law, 11 Pub. Procurement L. Rev. 103, 103–04 (2011).
88. See id. at 118.
89. Shelton et al., supra note 72, at 3.
90. FAR 1.102-2.
91. See id.
92. See Steven Kelman, Procurement and Public Management: The Fear of Discretion and the Quality of Government Performance 26 (1990) (discussing the adverse scrutiny contracting officials receive for failed risk-taking); Christopher R. Yukins, A Versatile Prism: Assessing Procurement Law Through The Principal-Agent Model, 40 Pub. Cont. L.J. 63, 77 (2010) (discussing the reduced willingness of contracting officials to utilize new vendors, innovative technologies, or novel procurement techniques due to such adverse scrutiny).
93. See Kelman, supra note 92.
94. See Brose, supra note 33, at 43; Walter J. Boyne, The Man Who Built the Missiles, Air & Space Forces Mag. (Oct. 1, 2000), https://www.airandspaceforces.com/article/1000bennie [https://perma.cc/64J3-4NCE].
95. See Brose, supra note 33.
96. Id.
97. Schooner, supra note 87, at 118.
98. FAR 19.501.
99. DOD Faces Challenges and Opportunities with Acquiring Space Systems in a Changing Environment: Hearing Before the H. Subcomm. on Strategic Forces of the H. Comm. on Armed Servs., 117th Cong. 8–9 (2021) (statement of Jon Ludwigson, Dir., Contracting & Nat’l Sec. Acquisitions, Gov’t Accountability Off.).
100. FAR 13.105; FAR 5.203(e).
101. FAR 5.203(a), (e). To be clear, the FAR does provide situation-specific authorities aimed at reducing the time it takes to reach contract award. For example, a contracting officer may use a combined synopsis and solicitation procedure when acquiring commercial products or services. See FAR 12.603. In addition, a synopsis period is not required when using a Broad Agency Announcement (BAA) to acquire basic or applied research, or advanced technology, component, or prototype development. See FAR 35.015(f) (describing the lack of a solicitation requirement for a BAA); see also DFARS 235.016 (listing the types of R&D activities authorized under a BAA). However, these authorities are limited to specific situations which do not satisfy the full spectrum of needs for military space acquisitions. First, although “dual use” technology is prevalent within the commercial space industry, modifications to this technology, the creation of new technology (e.g., space-based military weaponry), and related services are vital to enabling USSF operations. See John Venable, U.S. Space Force, The Heritage Found., Index of U.S. Military Strength 455 (Dakota L. Wood ed., 2022). These modifications, new technologies, and services are “non-commercial” in nature because they are generally developed only for the U.S. government and are not available to the public. Cf. FAR 2.101 (describing the definition of a “commercial product” and “commercial service”). Therefore, the authority to use a combined synopsis/solicitation procedure for commercial products or services would not apply to these types of procurements. Second, getting technology into the hands of the warfighter—and thus realizing its advantages—requires production, and ideally production at scale. The production of technology, and related management support and upgrades, are outside the scope of permissible activities in a BAA. See DFARS 235.016 (describing the Budget Activities authorized for use in a BAA); see also Dep’t of Def., DoD 7000.14-R, Fin. Mgmt. Reg. Vol. 2B, at 5-5 (2022) (providing definitions for the DoD’s Budget Activities). Accordingly, the authority to avoid using a synopsis period under a BAA would not apply to these types of procurements.
102. FAR 33.101.
103. Id.
104. See FAR 33.103(f)(1) (detailing that a pre-award protest filed with an agency precludes contract award, pending resolution of the protest, unless “urgent and compelling circumstances” or the best interests of the U.S. government warrant proceeding with contract award and an individual above the contracting officer approves this determination); FAR 33.103(f)(3) (detailing that a protest filed with an agency within ten days after contract award or five days after an offered debriefing date (whichever is later) suspends contract performance, pending resolution of the protest, unless “urgent and compelling circumstances” or the best interests of the U.S. government warrant continued performance and an individual above the contracting officer approves this determination); see also FAR 33.104(b) (explaining that a pre-award protest filed with the GAO precludes contract award, pending resolution of the protest, unless an agency’s Head of Contracting Activity (HCA) finds that “urgent and compelling circumstances” exist which significantly affect U.S. interests and do not permit waiting for a GAO decision, and award is likely to occur within thirty days of this finding); FAR 33.104(c) (explaining that a protest filed with the GAO within ten days after contract award or five days after an offered debriefing date (whichever is later) suspends contract performance, pending resolution of the protest, unless the HCA determines either “contract performance will be in the best interests of the United States” or “urgent and compelling circumstances” exist which significantly affect U.S. interests and do not permit waiting for a GAO decision).
105. See R. Ct. Fed. Cl. 65.
106. Understanding this fact, some contractors now consider bid protests a part of their business strategy, leveraging them as a tool to secure additional revenue from the U.S. government. For example, an incumbent contractor may benefit by filing a protest (regardless of its merit) when another contractor is selected to provide supplies or services formerly provided by the incumbent. See Mark Arena et al., RAND Corp., Assessing Bid Protests of U.S. Department of Defense Procurements 59–60 (2018). If the protest is filed at GAO within prescribed timelines, performance under the replacement contract typically may not occur until the litigation is resolved. See id. at 61–63. This often creates a “gap” in the provision of supplies or services between the end of the incumbent’s contract and the date on which GAO reaches a decision—a “gap” federal agencies frequently seek to fill by awarding “follow-on bridge contracts” to the incumbent contractor. See id. at 62.
107. Lauren Feiner & Amanda Macias, Pentagon Cancels $10 Billion JEDI Cloud Contract That Amazon and Microsoft Were Fighting Over, CNBC (July 6, 2021, 3:25 PM), https://www.cnbc.com/2021/07/06/pentagon-cancels-10-billion-jedi-cloud-contract.html [https://perma.cc/5Q4K-YXZ2].
108. See id.
109. Id.
110. Brose, supra note 33, at 60. Of note, the DoD may finally be on the path to acquiring enterprise-wide cloud computing. In December 2022, the DoD announced the award of Joint Warfighting Cloud Capability (JWCC) contracts to Amazon Web Services, Google, Microsoft, and Oracle as a replacement for its scuttled JEDI effort. See U.S. Dept. of Def., Department of Defense Announces Joint Warfighting Cloud Capability Procurement (Dec. 7, 2022), https://www.defense.gov/News/Releases/Release/Article/3239378/department-of-defense-announces-joint-warfighting-cloud-capability-procurement [https://perma.cc/X3KF-8PKW]. According to the DoD, JWCC will enable the acquisition of “commercial cloud capabilities and services . . . at the speed of mission, at all classification levels, from headquarters to the tactical edge.” Id. Although JWCC’s success remains to be seen, this much is clear: the litigation associated with JEDI led to a delay in the DoD’s acquisition of a mission-essential service (enterprise-wide cloud computing) that lasted over three years. See Jordan Novet, Microsoft Snags Hotly Contested $10 Billion Defense Contract, Beating Out Amazon, CNBC (Oct. 25, 2019), https://www.cnbc.com/ 2019/10/25/microsoft-wins-major-defense-cloud-contract-beating-out-amazon.html [https://perma.cc/4GVB-GUYL] (explaining that the DoD’s award of the JEDI contract to Microsoft occurred on October 25, 2019).
111. See John Hoehn, Cong. Rsch. Serv., IF11493, Joint All-Domain Command and Control (JADC2) 1 (2022) (describing JADC2 as a DoD concept to connect sensors from all military services into a single cloud-based network in order to expedite decision making during military operations).
112. See Industry and Agency Concerns over Intellectual Property Rights: Hearing Before the H. Subcomm. on Tech. & Procurement Pol’y of the H. Comm. on Government Reform, 107th Cong. 8–9 [hereinafter Intellectual Property Hearing] (statement of Jack Brock, Managing Dir., Acquisition & Sourcing Mgmt, Gov’t Accountability Off.).
113. Cf. FAR 2.101 (describing the definition of a “commercial product” and “commercial service”); DFARS 252.227-7014(a)(14) (describing the definition of “other than commercial computer software”). Note that a recent update to the FAR (and DFARS) replaced all references to “non-commercial” with “other than commercial.” See, e.g., FAR 52.213-4; DFARS 252.227-7013. This editorial change was made to achieve consistent language throughout the FAR and did not change the substantive meaning of any provision. See Federal Acquisition Regulation: Revision of Definition of “Commercial Item,” 86 Fed. Reg. 61,017-38 (Dec. 6, 2021). For the sake of clarity and ease of comprehension, this article continues to use the term “non-commercial.”
114. DFARS 252.227-7013(b)(1). There are eight additional circumstances in which the U.S. government is entitled to unlimited data rights in “items, components, or processes” under a DoD contract. See id. The most common of these additional circumstances include “studies, analyses, test data, or similar data” produced for the contract, when specified as an element of performance; “form, fit, and function data”; and technical data “necessary for installation, operation, maintenance, or training purposes.” Id.
115. See DFARS 252.227-7013(a)(16) (describing “Unlimited Rights” as the ability for the U.S. government to “use, modify, reproduce, perform, display, release, or disclose technical data in whole or in part, in any manner, and for any purpose whatsoever, and to have or authorize others to do so.”).
116. See DFARS 252.227-7013(a)(10) (defining “developed with mixed funding” as development “accomplished partially with costs charged to indirect cost pools and/or costs not allocated to a government contract, and partially with costs charged directly to a government contract”); see also DFARS 252.227-7013(b)(2) (explaining that five years is the default period for GPR).
117. DFARS 252.227-7013(a)(13).
118. See DFARS 252.227-7013(a)(12) (describing a “Government purpose” as “any activity in which the U.S. government is a party,” including “cooperative agreements with international or multi-national defense organizations,” “sales or transfers by the U.S. government to foreign governments or international organizations,” and competitive procurements).
119. DFARS 252.227-7013(a)(12)–(13).
120. DFARS 227.7203-5(b)(3).
121. DFARS 252.227-7013(b)(3).
122. See DFARS 252.227-7013(a)(14).
123. Id.
124. Id. When using one of these exceptions, the DoD must take action to restrict the recipient’s further reproduction, release, or disclosure of the technical data (usually through a non-disclosure agreement (NDA)) and notify the contractor owning “Limited Rights” in the technical data of the disclosure. Id. However, once disclosure outside the U.S. government has occurred, a contractor has already lost control and is relying upon a theoretically unlimited number of third parties (including, potentially, competing contractors) to use its technical data for only authorized purposes. Further, violations of an NDA must be discovered and then enforced through litigation that is often lengthy and expensive.
125. See DFARS 252.227-7014(a)(16) (for “Unlimited Rights”); DFARS 252.227-7014(a)(12) (for GPR).
126. See DFARS 252.227-7014(b)(3).
127. See DFARS 252.227-7014(a)(15)(i).
128. See DFARS 252.227-7014(a)(15)(ii).
129. See DFARS 252.227-7014(a)(15)(vi).
130. See DFARS 252.227-7014(a)(15)(vii). In an effort to prevent misuse of a contractor’s computer software when it is shared with a third party, the DFARS mandates that the U.S. government use NDAs and contract clauses limiting further disclosure of government-furnished information. See DFARS 252.227-7014(a)(15)(vi)–(vii). It also states generically that the U.S. government “shall not permit the Government support contractor to decompile, disassemble, or reverse engineer the software . . . .” Id. However, the same problem exists for industry here as with the sharing of non-commercial ICP outside the U.S. government—the loss of control over IP and the negative effects this can have on a company’s future business outlook.
131. U.S. Gov’t Accountability Off., GAO-17-644, Military Acquisitions: DOD Is Taking Steps to Address Challenges Faced by Certain Companies 19 (2017).
132. L. Elaine Halchin, Cong. Rsch. Serv., RL34760, Other Transaction (OT) Authority 4 (2011).
133. See Courtney Flatt & Laura Sullivan, The U.S. Made a Breakthrough Battery Discovery—Then Gave the Technology to China, Nat’l Pub. Radio (Aug. 3, 2022), https://www.npr.org/2022/08/03/1114964240/new-battery-technology-china-vanadium [https://perma.cc/ZS6B-LUF5].
134. Id.
135. To be clear, the DoD has also committed unauthorized disclosures of IP. For example, the COFC awarded $1.2 million in damages to a government contractor after it found the USAF repeatedly released its proprietary information about a conveyor system used to assemble aerial bombs to unauthorized recipients—including the contractor’s own competitors. See Spectrum Scis. & Software, Inc. v. United States, 98 Fed. Cl. 8 (2011).
136. DFARS 227.7103-5.
137. Id.
138. DFARS 227.7103-5(d)(1).
139. DFARS 252.227-7014(a)(15).
140. See, e.g., U.S. Gov’t Accountability Off., supra note 131, at 9 (explaining that in a study of twelve non-traditional companies, nine (or seventy-five percent) cited concerns with the allocation of IP rights as a challenge to pursuing DoD contracting opportunities).
141. See Yukins, supra note 92.
142. Intellectual Property Hearing, supra note 112, at 2.
143. See U.S. Gov’t Accountability Off., supra note 131, at 20–25, 29.
144. By example, the development and execution of a data rights strategy during the procurement of the Air Force’s T-X (now T-7 Red Hawk) aircraft required tens of thousands of hours of work by contracting officials, in coordination with program managers, end users, and the Air Force Material Command Law Office, over the course of eighteen months. See Jeremiah Gertler, Cong. Rsch. Serv., R44856, Advanced Pilot Training (T-X) Program 12 (2018).
145. See FAR 9903.201-1. Nine exemptions from CAS exist—the most relevant to military space acquisitions being “contracts and subcontracts with small businesses,” “firm-fixed-price contracts or subcontracts awarded on the basis of adequate price competition without submission of certified cost or pricing data,” and “contracts or subcontracts of less than $7.5 million, provided that, at the time of award, the business unit of the contractor or subcontractor is not currently performing any CAS-covered contracts or subcontracts valued at $7.5 million or greater.” Id. Notably, these nine exemptions do not specifically cover contracts or subcontracts awarded on a cost-reimbursement basis, or those awarded to the wide swath of non-traditional contractors that do not meet the Small Business Administration’s size standards. Id.
146. FAR 9903.201-2. When a contractor has more than one business unit, the determination of CAS coverage applies to each business unit individually. Id.
147. Id.
148. Id.; see FAR 9903.201-1; FAR 9903.201-2.
149. U.S. Gov’t Accountability Off., GAO 20-266, Cost Accounting Standards: Board Has Taken Initial Steps to Meet Recent Legislative Requirements 1 (2020).
150. Id.
151. U.S. Gov’t Accountability Off., supra note 131, at 15–16.
152. Id. at 16.
153. See FAR 30.201-1(a). In addition, exemptions now exist for the requirement to submit certified cost or pricing data under a Broad Agency Announcement, SBIR contract, or Small Business Technology Transfer (STTR) contract valued below $7.5 million. See Memorandum from John Tenaglia, Off. of Under Sec’y of Def., Class Deviation—Pilot Program for Streamlining Awards for Innovative Technology Projects 1–2 (2022).
154. These standards are generally met by manufacturing companies with 500 or fewer employees and non-manufacturing companies with average annual receipts under $7.5 million. See Basic Requirements, U.S. Small Bus. Admin., https://www.sba.gov/federal-contracting/contracting-guide/basic-requirements (last visited Oct. 5, 2022) [https://perma.cc/T8KF-6FMR].
155. See FAR 16.101.
156. See id.
157. An example is United Launch Alliance, which is a joint venture between Lockheed Martin Space and Boeing Defense, Space and Security. See United Launch Alliance: Superior Capability, Superior Value, Boeing Corp., https://www.boeing.com/space/united-launch-alliance (last visited Dec. 2, 2022) [https://perma.cc/QD4W-72UA].
158. U.S. Gov’t Accountability Off., GAO-22-105357, Other Transaction Agreements: DoD Can Improve Planning for Consortia Awards 11 (2022).
159. Dep’t of the Air Force, Alternative Acquisition System for the United States Space Force 2 (2020).
160. See id.
161. Of note, this proposal is not without precedent as Congress has previously created alternative acquisition systems to advance vital security missions of federal agencies. For example, in 1995 Congress gave the Federal Aviation Agency (FAA) broad authority to develop and implement an “acquisition management system” (AMS) for the FAA. See Pub. L. No. 104-50, § 348, 109 Stat. 436, 460 (1995). Congress also gave the FAA Administrator discretion to utilize OT authority and other non-traditional acquisition methods “as may be necessary to carry out the functions of the Administrator and the [FAA].” 49 U.S.C. § 106(l)(6). Congress granted these authorities to accelerate the FAA’s modernization of air traffic control technology deemed vital to protecting public safety. See Rand Allen & Christopher Yukins, Bid Protests and Contract Disputes Under the FAA’s New Procurement System, 26 Pub. Cont. L.J. 135, 136–38 (1997). And in so doing, it created an alternative acquisition system for the FAA (in the AMS and its OT authority) that is significantly broader than the alternative acquisition system proposed in this article for the USSF. For instance, Congress did not limit use of non-FAR-based authorities to a subset of FAA acquisitions occurring within the AMS, like the proposed limitation on use of OT authority for USSF acquisitions involving space technology, systems, and weaponry. See Pub. L. No. 104-50, § 348, 109 Stat. 436, 460 (1995). In addition, Congress exempted the AMS from the Competition in Contracting Act (CICA), FAR, and other federal procurement laws and regulations—thereby foreclosing COFC and GAO jurisdiction over all FAA acquisitions. See Pub. L. No. 104-50, § 348(b), 109 Stat 436, 460–61 (1995). Rather than filing bid protest litigation at COFC or GAO, contractors must challenge FAA solicitations or awards through the FAA’s Office of Dispute Resolution for Acquisitions (ODRA). See 49 U.S.C. § 40110(d)(4). Only after the FAA issues a final order implementing an ODRA recommendation may a contractor pursue redress outside the FAA—by filing an appeal of the order at the U.S. Court of Appeals level. See 14 C.F.R. § 17.43. This litigation framework is materially different from that found within the proposed acquisition system, which would leave USSF acquisitions not involving space technology, systems, or weaponry subject to the FAR and CICA—and thus the full breadth of GAO and COFC jurisdiction.
162. Rhys McCormick, Ctr. for Strategic & Int’l Studs., Department of Defense: Other Transaction Authority Trends 2 (2020).
163. See 10 U.S.C. § 4001(b)(5)–(6).
164. See 10 U.S.C. § 4021 (authorizing the DoD’s acquisition of basic, applied, and advanced research projects that, to the maximum extent practicable, do not duplicate research conducted under existing programs within the DoD).
165. See 10 U.S.C. § 4023 (authorizing the DoD’s acquisition of ordnance, signal, chemical activity, transportation, energy, medical, space-flight, telecommunications, and aeronautical supplies, including parts, accessories, and designs thereof, that the Secretary of Defense considers “necessary for experimental or test purposes in the development of the best supplies that are needed for the national defense.”)
166. See 10 U.S.C. § 4022.
167. 10 U.S.C. § 4022(a)(1).
168. See 10 U.S.C. § 4022(d)(1) (requiring the existence of one of the following four conditions for use of OT authority on a prototype project: (1) participation to a significant extent by at least one non-traditional defense contractor in the prototype project; (2) small businesses, non-traditional defense contractors, or nonprofit research institutions serving as all significant participants in the prototype project, other than the federal government; (3) funding of at least one-third of the prototype project by sources other than the U.S. government; or (4) the existence of exceptional circumstances, as determined by the senior procurement executive for the agency in writing, warranting use of OT authority for the prototype project).
169. See 10 U.S.C. § 4022(f). Of note, the statute does not define the term “competitive procedures,” thereby leaving discretion for determining this standard’s requirements to the DoD and its subordinate military service branches.
170. McCormick, supra note 162, at 9.
171. Id. at 1.
172. Sydney Lupkin, How Operation Warp Speed’s Big Vaccine Contracts Could Stay Secret, Nat’l Pub. Radio (Sept. 29, 2020), https://www.npr.org/sections/healthshots/2020/09/29/917899357/how-operation-warp-speeds-big-vaccine-contracts-could-stay-secret [https://perma.cc/5WA9-79PG].
173. See David Adler, Inside Operation Warp Speed: A New Model for Industrial Policy, 5 Am. Affs. J. 3 (2021), https://americanaffairsjournal.org/2021/05/inside-operation-warp-speed-a-new-model-for-industrial-policy/#notes [https://perma.cc/3FPG-6Y9C].
174. Simi V. Siddalingaiah, Cong. Rsch. Serv., IN11560, Operation Warp Speed Contracts for COVID-19 Vaccines and Ancillary Vaccination Materials 2 (2020).
175. Alison Caldwell, How Were Researchers Able to Develop COVID-19 Vaccines So Quickly? The Steps That Produced the Most Rapid Vaccine Rollout in History, Univ. of Chi. (Feb. 5, 2021), https://news.uchicago.edu/story/how-were-researchers-able-develop-covid-19-vaccines-so-quickly [https://perma.cc/D4R4-QB7R].
176. USSF SMC Hosts Upcoming Space Force Pitch Day in Spring 2021, Space & Missile Sys. Ctr. Pub. Affs., U.S. Space Force (Aug. 20, 2020), https://www.losangeles.spaceforce.mil/News/Article-Display/Article/2319982/ussf-smc-hosts-upcoming-space-force-pitch-day-in-spring-2021 [https://perma.cc/UJ6S-3VPJ].
177. See Sandra Erwin, Space Force Awards $32 Million in Contracts to Startups and Small Businesses, SpaceNews (Aug. 20, 2021), https://spacenews.com/space-force-awards-32-million-in-contracts-to-startups-and-small-businesses [https://perma.cc/H5AU-L48D]. The SBIR Phase II award process is exempted from synopsis and solicitation requirements under the FAR. See U.S. Small Bus. Admin., Small Business Innovation Research (SBIR) and Small Business Technology Transfer (STTR) Program Policy Directive 6, 19 (2020).
178. As of October 2022, a federal agency may not use in excess of $295,924 in agency SBIR funds for a Phase I (Concept Development) award, or in excess of $1,972,828 in agency SBIR funds for a Phase II (Prototype Development) award, without receiving prior waiver approval from the SBA. See About, U.S. Small Bus. Admin., https://www.sbir.gov/about (last visited Feb. 8, 2023) [https://perma.cc/WJ4Q-98QH]. Such a cap does not exist under the SBIR program for a Phase III (Commercialization) award as a Phase III award may not use SBIR funds. See U.S. Small Bus. Admin., supra note 177, at 27. The aforementioned “caps” apply only to the use of agency SBIR funds. Id. Accordingly, an agency can supplement funding for a Phase I or Phase II award with other (non-SBIR) agency funds. See 15 U.S.C. § 638(aa)(5).
179. Contracts entered into under the SBIR program are governed by a unique SBIR technical data rights structure. See U.S. Small Bus. Admin, supra note 177, at 53–54. This structure includes a SBIR protection period of at least twenty years following contract award, during which time technical data generated under the SBIR contract may be utilized within the U.S. government, but generally may not be disclosed outside the U.S. government if such disclosure could undermine the small business’s future commercialization of its technology. See id. Following the SBIR protection period, the U.S. government receives broader government-purpose rights in the technical data, which allows for internal U.S. government use and disclosure outside the U.S. government for a valid government purpose. Id.; see supra notes 116–119 and accompanying text.
180. As applied to space acquisitions, these include the SBIR program’s focus on assisting small businesses and the competitive free enterprise system, rather than providing for streamlined and flexible acquisitions, and its related requirement for annual reporting to the Small Business Administration. See 15 U.S.C. § 638(a), (i).
181. See FAR 13.105; FAR 5.203(e).
182. See Geoff Orazem et al., Why Startups Don’t Bid on Government Contracts, Bos. Consulting Grp. (Aug. 22, 2017), https://www.bcg.com/publications/2017/public-sector-agency-transformation-why-startups-dont-bid-government-contracts [https://perma.cc/UA3P-WHPB].
183. See Feiner & Macias, supra note 107; see also supra notes 107–111 and accompanying text.
184. See Sys. Architecture Info. Techs., B-418721, CPD ¶ 184, at 2 (Comp. Gen. June 2, 2020); Space Exploration Techs. Corp. v. United States, 144 Fed. Cl. 433, 442 (2019). It bears noting that OT acquisitions may—like any agency action—be subject to challenge in federal district court under the Administrative Procedures Act (APA). See 5 U.S.C. §§ 551–559. However, the viability of such review remains unsettled. See Space Exploration Techs. Corp., 144 Fed. Cl. at 442–43, 446 (explaining that OT agreements may be appropriately heard in federal district courts under the APA); but see MD Helicopters Inc. v. United States, 435 F. Supp. 3d 1003, 1010 (D. Ariz. 2020) (finding lack of subject matter jurisdiction over a challenge to an OT agreement under the APA). The APA grants federal agencies a deferential standard, requiring courts to uphold action by a federal agency unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). This traditional deference is at its highest where a court is reviewing action by a federal agency that required a high level of technical expertise, like award of a prototype OT agreement. See Space Exploration Techs. Corp. v. United States, No. 2:19-cv-07927-ODW, 2020 U.S. Dist. LEXIS 245693, at *10 (C.D. Cal. Sept. 24, 2020).
185. See The Basics: What Are OTs?, Def. Advanced Rsch. Projects Agency, https://acquisitioninnovation.darpa.mil/what-are-ots (last visited Oct. 21, 2022) [https://perma.cc/YM5T-DSTH].
186. See Sys. Architecture Info. Techs., CPD ¶ 184, at 2 (explaining the GAO has limited jurisdiction to hear protests when an agency violates statutory requirements for the use of OT authority, as this creates an improper OT agreement in lieu of a FAR-based procurement). Examples of such requirements can be seen within the DoD’s authority to use a prototype OT agreement, which requires use of a qualifying project and satisfaction of one of several conditions. See 10 U.S.C. § 4022(a)(1) (discussing qualifying project requirements); 10 U.S.C. § 4022(d)(1) (discussing required conditions).
187. See 10 U.S.C. §§ 4021–4023.
188. If Congress is unwilling to grant the USSF stand-alone OT authority, and mandate use of this authority within an alternative acquisition system, another option to improve military space acquisitions is to make statutory requirements for use of the DoD’s existing OT authorities non-binding guidance for the USSF. This would give the USSF wider discretion to use OT authority for research, experimentation, prototyping, and follow-on production. It would also reduce bid protest litigation because industry could no longer successfully argue that the USSF misused the DoD’s existing OT authorities—as requirements for their use would be informative to, but not binding on, the USSF. However, unlike the proposed acquisition system, this option would not guarantee the exclusive use of OT agreements for military space acquisitions. For example, production contracts that are not “follow on” efforts from previous prototype OT agreements could not be acquired by the USSF using OT authority. See 10 U.S.C. § 4022(f) (constituting the sole statutory authorization for the DoD’s use of OT authority for production). Furthermore, the increased flexibilities provided by this option for use of OT authority in research, experimentation, prototyping, and follow-on production would not necessarily lead the USSF to utilize OT acquisitions for these efforts. As previously discussed, strong structural incentives exist with the federal acquisition system for contracting officials to avoid risk with their procurement decisions. See Yukins, supra note 92 and accompanying text. Because these incentives would not be reversed simply by making the DoD’s existing OT requirements non-binding guidance for the USSF, it is likely that they would continue to lead USSF contracting officials to utilize FAR-based procurement for military space acquisitions.
189. See 28 U.S.C. § 1491(b)(1); Hydraulics Int’l v. United States, 161 Fed. Cl. 167, 176–77 (2022).
190. Hydraulics Int’l, 161 Fed. Cl. at 179 (quoting 28 U.S.C. § 1491(b)(1)).
191. Intellectual Property Hearing, supra note 112.
192. U.S. Gov’t Accountability Off., supra note 131, at 15–16.
193. U.S. Gov’t Accountability Off., GAO 22-105357, Other Transaction Agreements: DoD Can Improve Planning for Consortia Awards 6 (2022).
194. Id. at 17.
195. McCormick, supra note 162, at 7.
196. U.S. Gov’t Accountability Off., supra note 193, at 17.
197. A CMO is typically a nonprofit organization, although for-profit companies and academic institutions have also served as CMOs. Id. The sponsoring federal agency pays the CMO to provide acquisition support and administrative services, which can include functions such as performing market research, releasing requests for proposals to consortium members on behalf of the agency, and recruiting consortium members. Id.
198. Id. Although OT consortia frequently contain only private companies, this is not always the case. Academic institutions and non-profit institutions may also belong to a consortium, further enhancing the innovation potential of this flexible acquisition model. Id.
199. Id. at 12.
200. Id. at 17.
201. Id. at 15.
202. Id.
203. Id. at 13. The CMO may assist consortium members with their white paper submissions by providing related training or by reviewing draft submissions to ensure compliance with requirements in the sponsoring agency’s “call.” Id. If these services are provided, they are typically funded through consortium management fees. Id.
204. Id. at 9.
205. Nathan Strout, Space Force Expects $1 Billion in Contracts in First Year of Space Enterprise Consortium Reloaded, Def. News (Sept. 8, 2021), https://www.defensenews.com/battlefield-tech/space/2021/09/08/space-force-expects-1-billion-in-contracts-in-first-year-of-space-enterprise-consortium-reloaded [https://perma.cc/W67S-FUJX].
206. See id.
207. Nathan Strout, US Space Force Changes Timeline for Hiring a Prototyping Consortium Manager, C4ISRNet (Nov. 18, 2020), https://www.c4isrnet.com/battlefieldtech/space/2020/11/18/space-force-to-announced-new-prototyping-consortium-manager-by-end-of-year [https://perma.cc/W5K4-DBHH].
208. See id.
209. Given their demonstrated success, use of OT consortia (like SpEC) has skyrocketed. For example, between 2019 and 2021 sixty-five percent of the DoD’s $37.3 billion in prototype OT obligations occurred within OT consortia. See U.S. Gov’t Accountability Off., supra note 193, at 11.
210. MATOCs are also commonly referred to as multiple-award indefinite delivery, indefinite quantity (IDIQ) contracts. They were created by Congress in 1994 in an effort to streamline the government procurement process. See Federal Acquisition Streamlining Act of 1994, Pub. L. No. 103-355, 108 Stat. 3243 (1994).
211. See FAR 16.504(c)(1)(i); see also FAR 16.505(a)(2).
212. FAR 16.505(b)(1)(i).
213. See FAR 6.1.
214. For example, contracting officers are authorized to exclusively use oral presentations from industry during the task order award process. See FAR 16.505(b)(1)(ii).
215. Id.
216. Id. These requirements increase in scope as the dollar value of a task order increases. See FAR 16.505(b)(1)(iii)(B). For example, a task order exceeding six million dollars requires a contracting officer to disclose all significant factors and sub-factors (including cost or price) that the agency expects to consider when evaluating task order proposals, and their relative importance. See FAR 16.505(b)(1)(iv). In addition, a task order exceeding this cost threshold triggers requirements for contracting officers to notify unsuccessful awardees and utilize the debriefing procedures specified in FAR 15.5. See FAR 16.505(b)(6). These requirements do not exist for task orders below six million dollars. Id.
217. See FAR 16.505(a)(10). The GAO may hear protests regarding the issuance or proposed issuance of a task order by the U.S. government. See FAR 16.505(a)(10)(ii). For a protest of a DoD task order to be heard by the GAO, the value of the task order must exceed twenty-five million dollars, or the protest must allege the task order improperly increases the scope, period, or maximum value of the contract. FAR 16.505(a)(10)(i). COFC may hear protests regarding the issuance or proposed issuance of a task order by the U.S. government, but only if certain criteria are met. See 41 U.S.C. § 4106(f)(1). Of note, protestors can block performance of critical requirements included in a task order for the pendency of litigation—as they can for similar requirements included in a contract. See, e.g., FAR 16.505(a)(10)(ii) (explaining that protests of task orders at GAO follow the procedures specified in FAR 33.104); supra note 104 (describing FAR 33.104 requirements that, if met, normally result in a stay of contract award or suspension of contract performance).
218. These include, as previously discussed, the FAR’s mandatory synopsis and solicitation requirements. See FAR 16.505(a)(10).
219. See supra Part III.B.3.
220. See supra Part III.B.4.
221. See supra Part II.B.5.
222. Moshe Schwartz et al., Cong. Rsch. Serv., R45521, Department of Defense Use of Other Transaction Authority: Background, Analysis, and Issues for Congress 16 (2019).
223. The official title of the position is “Assistant Secretary of the Air Force for Space Acquisition and Integration.” John S. McCain National Defense Authorization Act for Fiscal Year 2019, Pub. L. No. 115-232, 132 Stat. 1636, 1674 (2018).
224. Id.
225. See Inspector Gen., U.S. Dep’t of Def., Audit of Other Transactions Awarded Through Consortiums 11 (2021) (describing the referenced congressional reporting requirement for the DoD’s use of OT agreements for Fiscal Year 2019 through Fiscal Year 2021); National Defense Authorization Act for Fiscal Year 2022, Pub. L. No. 117-81, § 825(b), 135 Stat. 1541, 1831 (2021) (mandating the same congressional reporting for the DoD’s use of OT agreements as a recurring annual reporting requirement).
226. See National Defense Authorization Act for Fiscal Year 2022 § 824.
227. Inspector Gen., supra note 225, at 29–32.
228. Id. at 29–33.
229. See Off. of Under Sec’y of Def. for Acquisition & Sustainment, U.S. Dep’t of Def., Other Transactions Guide 38–39 (2018) [hereinafter OT Guide].
230. See Schwartz et al., supra note 222, at 17.
231. See id. at 16–17.
232. See generally Inspector Gen., supra note 225, at 19–20 (describing the need to train DoD agreements officers on how to effectively utilize OT authority with complex consortium agreements).
233. See OT Guide, supra note 229.
234. All USSF OT agreements officers and supporting acquisition law attorneys—military and civilian—should be required to attend this program. Attendance should also be made available to USSF program managers, who could similarly benefit from the instruction provided and leverage lessons learned to improve the effectiveness of military space acquisitions.
235. See, e.g., The Greg and Camille Baroni Center for Government Contracting, Geo. Mason Univ., https://business.gmu.edu/centers/center-government-contracting (last visited Dec. 14, 2022) [https://perma.cc/A9P6-C5RH].
236. The USSF should require detailed plans for the creation of such engagement opportunities prior to selecting an academic institution to host the proposed training program.
237. Space Force to Partner with Johns Hopkins Univ., Sec’y of the Air Force Pub. Affs (Oct. 26, 2022), https://www.spaceforce.mil/News/Article/3199854/space-force-to-partner-with-johns-hopkins-university-sais-for-service-specific [https://perma.cc/SW2E-SUAT]. The USSF’s PME programs for mid- and senior-level officers will also be made available to a select number of USSF civilians and officers from other military service branches. Id.
238. Id.
239. Id. at ¶ 6.
240. Education with Industry Program, Air Force Inst. of Tech., https://www.afit.edu/CIP/page.cfm?page=1567 (last visited Oct. 28, 2022) [https://perma.cc/GBH7-H2Y8].
241. Cf. Acquisitions, U.S. Space Force, https://www.spaceforce.com/civilian-careers/acquisitions (last visited Mar. 12, 2023) [https://perma.cc/M6Q3-MJ2U]; see Brian D. Green, Bring on the Space Marines!, 33 AIR & SPACE L., no. 4, 2020, at 8, 10.
242. See U.S. Space Force, About The United States Space Force, https://www.spaceforce.mil/About-Us/About-Space-Force/#:~:text=The%20United%20States%20Space%20Force,the%20Department%20of%20the%20Navy [https://perma.cc/8LFA-8WEJ] (last visited March 22, 2023) (“The United States Space Force is a separate and distinct branch of the armed services, organized under the Department of the Air Force in a manner very similar to how the Marine Corps is organized under the Department of the Navy.”).
243. See Green, supra note 241, at 8, 10. A USSF JAG corps should be comprised of judge advocates, civilian attorneys, and paralegals (both military and civilian). This construct reflects the need for military presence within a military organization, while also accounting for the institutional stability provided by federal civil servants. It is also consistent with the construct of existing JAG corps within the U.S. military.
244. Id. Of note, an exception to this development model for USAF judge advocates may be on the horizon with the recent, congressionally mandated creation of an Office of the Special Trial Counsel (OSTC) within all military departments. See National Defense Authorization Act for Fiscal Year 2022, §§ 851–852, 135 Stat. 1541, 1692–1695 (2021). Congress has mandated that judge advocates working within the OSTC be “well-trained, experienced, highly-skilled, and competent in handling covered offenses.” Id. at 1695. These requirements clearly deviate from the current generalist force development model used for USAF judge advocates, and it remains to be seen whether they will cause judge advocates from across the military service branches to remain within the OSTC throughout their careers.
245. See Green, supra note 241, at 3.
246. See Cully Stimson, A Career Litigation Track Is Necessary for Army and Air Force JAGS, Daily Signal (May 12, 2016), https://www.dailysignal.com/2016/05/12/a-career-litigation-track-is-necessary-for-army-and-air-force-jags [https://perma.cc/5LEA-FSG9] (discussing the extensive congressional lobbying by the USAF, on behalf of the USAF JAG Corps, against the creation of a criminal litigation career track).
247. Such focused prioritization will likely require the USAF JAG Corps to continue providing legal support to the USSF in other areas—such as military justice (i.e., criminal law) and legal assistance.
248. Recruiting and accessions programs should exist for both judge advocate and civilian attorney positions within the USSF JAG corps.
249. Many contracting officials within the DoD are also licensed attorneys. This is particularly common within Air Force Materiel Command, the lead major command for acquisitions within the USAF. See Air Force Materiel Command, U.S. Dep’t of the Air Force (Feb. 7, 2023), https://www.af.mil/About-Us/Fact-Sheets/Display/Article/104481/air-force-materiel-command [https://perma.cc/T87T-6JSR].
250. See generally Claudette Roulo, Why Are Marines Part of the Navy?, U.S. Dep’t of Def. (Feb. 21, 2019), https://www.defense.gov/News/Feature-Stories/story/Article/1763150/why-are-marines-part-of-the-navy [https://perma.cc/G2GE-5K59] (explaining the special, independent status of the Marines within the Department of the Navy).
251. Stephen M. McCall, Cong. Rsch. Serv., IF11495, Defense Primer: The United States Space Force 1 (Nov. 16, 2022). Other USSF responsibilities include “maturing the military doctrine for space power” and “organizing space forces to present to our Combatant Commands.” Id.
252. See Kendall, Brown, Raymond Tell Congress $194 Billion Budget Request Balances Risks, Quickens Transformation, Sec’y of Air Force Pub. Affs. (Apr. 27, 2022), https://www.af.mil/News/Article-Display/Article/3012814/kendall-brown-raymond-tell-congress-194-billion-budget-request-balances-risks-q [https://perma.cc/PL7X-TFSG].
253. See Ashley Wright, Space Force Releases 1st Doctrine, Defines “Spacepower” as Distinct Form of Military Power, U.S. Space Force (Aug. 10, 2020), https://www.spaceforce.mil/News/Article/2306828/space-force-releases-1st-doctrine-defines-spacepower-as-distinct-form-of-milita [https://perma.cc/4CFF-MCKX].
254. See U.N. Charter, supra note 50.
255. JAG Corps exist within all other U.S. military service branches: the USAF, U.S. Army, U.S. Navy, U.S. Marine Corps (referred to as the Judge Advocate Division), and U.S. Coast Guard. See., e.g., U.S. Air Force, A Tradition of Service: History of JAG, https://www.airforce.com/careers/specialty-careers/jag/history [https://perma.cc/5LUU-K6K5] (last visited Mar. 22, 2023). These existing JAG Corps are all led by a senior judge advocate in the rank of General officer (or equivalent). See id. A similar model would be appropriate for a USSF JAG Corps.
256. Gleason & Hays, supra note 27, at 3.
257. See Schriever, supra note 1.