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.
Following the Soviet Union’s launch of the Sputnik satellite in 1957, a first in the history of mankind, 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. 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. 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.” 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.
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%). 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. 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. Along with robustly funding China’s national space programs, the CCP has worked diligently to develop and leverage China’s private space industry for government purposes. 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.
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. 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. 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. 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. 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. 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.
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. They also facilitate high-speed market transactions within the global financial system, including credit card payments, ATM withdrawals, and securities trades on investment exchanges. And of perhaps greatest significance, PNT capabilities are utilized by advanced militaries when taking human life and protecting the safety of their nation’s citizens from missile attacks. 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 gravity 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. 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.”
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. 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. In addition, China and Russia are rapidly developing space-based ASAT weapons, including missiles, projectiles, and satellites with robotic arms. 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. Moreover, China and Russia have greatly improved their respective cyberspace capabilities as a means to attack computer networks relied upon to control satellites. 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.
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. 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. 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.” 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.
This PNT imbalance will not only bolster China’s ongoing anti-access/area-denial operations 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. 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. 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. 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?” If China or Russia were ever to achieve space superiority, 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. 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. Like the United States and vast majority of countries, China and Russia are parties to the OST. 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. 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. 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. Given wide-spread global reliance on the South China Sea, which each year services nearly twenty-five percent of global shipping and twelve percent of global fishing, 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. Examples of this behavior include Russia’s invasion of Georgia in 2008, and subsequent recognition of two pro-Russia breakaway countries; its invasion of Ukraine in 2014, and subsequent annexation of Ukraine’s Crimea region; and its full-scale invasion of Ukraine in 2022, which was originally designed to overthrow the country’s pro-Western government. 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.
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. 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. 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. Meanwhile, private sector investment in space has exploded since the turn of the 21st century, with no end in sight. 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”). This has led to remarkable innovations in space technology, including the creation of reusable launch vehicles (for space tourism); lower-cost LEO satellites (for space-based internet and communications); and on-orbit repair, refueling, and debris management systems. Often this commercial space technology is “dual use,” meaning it can also be used for military purposes with limited or no modifications required. 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. 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. 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. 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.”
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. 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. 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. 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, 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. One example of such a non-traditional supplier is Lunewave, a privately-held small business with less than 50 employees. 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. In 2021, the company received a $1.7 million Small Business Innovation Research (SBIR) contract from the USSF to develop a satellite antenna capable of monitoring the positioning of multiple satellites simultaneously. 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. 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. 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. 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. 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. 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.” 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. 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. 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.
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,” 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. 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. 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. 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.” But this transformation in the FAR’s approach to risk is rooted in achieving efficient operations, 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. This frequently leads contracting officials to take less risk than allowed by law with their procurement strategies, 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. 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. 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, 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. 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. 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. 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. All told the FAR allocates at least sixty days for a process that must move faster for military space acquisitions.
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. 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. 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. At the COFC, a temporary restraining order and preliminary injunction, which also prevent award of a contract, are available.
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. A particularly egregious example is Amazon’s protest of a ten-billion-dollar DoD cloud computing contract in 2019. 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. After twenty months of litigation, the DoD announced its cancellation of JEDI due to changing “mission needs.” 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. 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.
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. 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.
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.” With “Unlimited Rights,” the U.S. government may use the ICP’s underlying technical data for essentially any legal purpose. 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. 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. It may also release or disclose such data outside the U.S. government for a “U.S. government purpose,” i.e., a non-commercial reason. After the GPR period ends, the U.S. government’s interest in the ICP converts to the broader “Unlimited Rights” standard.
When a non-commercial ICP is developed exclusively with private funds under a DoD contract, “Limited Rights” are triggered. 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. However, exceptions to this general prohibition exist and their applicability is solely within the discretion of the U.S. government. 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.
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. However, when such software is developed exclusively with private funds under a DoD contract “Restricted Rights” are triggered.
“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. 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. 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, 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.”
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. 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. 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. 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 batteries (and has undoubtedly shared this IP with the CCP). Examples like this 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. 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. However, the DFARS also mandates that a contracting officer acquire at least “Limited Rights” in technical data or “Restricted Rights” in non-commercial computer software for the U.S. government. 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.
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. As a result, rather than negotiating for alternative IP frameworks, DoD contracting officials often adhere to the standard allocation of IP rights under the DFARS—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. 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. 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. 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. 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. 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.
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. 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. These compliance burdens generate significant manpower and resource allocation requirements, which cause many non-traditional suppliers to eschew defense contracting opportunities entirely. 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.”
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, 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 standards 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. 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. 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.
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. 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. Current space procurement efforts under the FAR take too long to develop and deploy and often fail to meet stated objectives. 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.
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. By statute, the DoD may use OT authority for research, experimental, or prototype 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.” 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. 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.
Recognizing the value of OT authority in developing new military technology, Congress has progressively given the DoD greater flexibility for its use. In response, OT obligations within the DoD have soared—rising 712% between 2015 and 2019. 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. 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. Under this framework, the U.S. government invested over eighteen billion dollars in vaccine development 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. 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. Over the course of the two-day event, the USSF awarded nineteen SBIR Phase II contracts totaling thirty-two million dollars—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, IP, and other 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. In addition, companies would have been required to provide lengthy, tailored proposals for each contract opportunity they chose to pursue. 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. 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. Although exceptions to this general rule exist, they apply only in limited circumstances and are infrequently utilized. 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. 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. 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.
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. 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.
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 allocation and mandatory CAS 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. 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. OT consortia can vary in structure based on the specific needs of an acquisition initiative. However, they are normally built around a common theme and include three components. These components are: (1) a sponsoring federal agency; (2) a consortium management organization (CMO), selected by the agency; and (3) a consortium, frequently comprised of private companies.
The foundation of OT consortia is usually a “base OT agreement” between the sponsoring federal agency and the CMO. 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. 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. 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. 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. 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).
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. SpEC is managed by a CMO 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. Based on its early successes, SpEC’s budget was recently raised by Congress to twelve billion dollars over ten years. 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.
It bears noting that use of multiple-award task order contracts (MATOCs) 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. Task order awards are subject to “fair opportunity” requirements under FAR Part 16, not typical “full and open competition” requirements under FAR Part 6. “Fair opportunity” requirements grant contracting officers “broad discretion” to develop “appropriate [task] order placement procedures” and encourage use of minimal industry submission requirements—flexibilities not available under “full and open competition.” 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, a federal agency’s failure to follow those requirements may be subject to protest. 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” requirements and the full scope of bid protest jurisdiction at the GAO and COFC. Additionally, MATOCs remain subject to the rigid IP frameworks, burdensome CAS, and inflexible acquisition models 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. 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 executive 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. 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.” 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. 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. 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. 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. 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. 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. 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. 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.” 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. 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. 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. 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. 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. 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.” 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.” 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. 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. Specifically, it will require congressional action to create a USSF Judge Advocate General’s (JAG) Corps.
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.” Although appropriate to develop staff judge advocates who advise commanders on issues across “the overarching legal domains,” 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. 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. 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. 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. 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. Second, it would align with the USSF’s responsibilities, which include “acquiring military space systems” and “developing military space professionals.” And third, it would comport with the emergence of space as “a new and indisputable warfighting domain” with distinct legal issues affecting military operations. Legal issues like devising spacepower doctrine that complies with the law of war and applying the U.N. Charter’s limitations on the use of force 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.
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,” 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. 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.
