The authors serve in the United States Army Judge Advocate General’s Corps. The views expressed in this paper are solely those of the authors. They do not reflect the official policy or position of the United States Army, Department of Defense, or U.S. Government.
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The Department of Defense (DoD) is changing how it fights due to emerging technologies such as artificial intelligence and 5G technology to deter and defeat adversaries. To this end, the DoD recently approved the Joint Warfighting Concept that envisions using interoperable weapon systems and command and control systems in multi-domain operations (i.e., operations through land, air, sea, space, cyber, and information). Given certain objectives of government procurement law, like competition and best value, this concept is only possible using modular open systems approaches (MOSA) to power a system of systems which reduce costs, allow upgrades, and increase interoperability between systems. DoD tried implementing MOSA for years and now has momentum as it invests more than $2 trillion on programs to modernize the force.
In his June 2021 testimony before the House Armed Services Committee, General Mark A. Milley, then Chairman of the Joint Chiefs of Staff, stated that by “[u]tilizing cloud-based networks and agile software development, our modular open sourced systems will deliver the necessary strategic operational advantage required within both competition and conflict.” In 2019, the Secretaries of the U.S. Army, Navy, and Air Force jointly declared that “[v]ictory . . . will be in part determined by our ability to rapidly share information across domains” and noted that sharing information between different machine systems requires using common standards. Despite the focus of Congress and the DoD, DoD does not use MOSA widely in major acquisition programs.
Implementing MOSA should decrease DoD’s dependence on privately developed intellectual property (IP) because MOSA allows for updating modular components without needing extensive data rights to the connected systems from the prime vendor so long as the interfaces are open. As will be discussed in Section II, interfaces or common connections between systems are of central importance if MOSA is to be effectively implemented. For example, a MOSA approach should enable the DoD to update an existing aircraft’s radar in its fleet by allowing innovative solutions from multiple vendors and with competitive prices.
DoD acquisition programs and the military departments must develop customized IP strategies and take steps to prioritize IP in acquisition planning but have no current means of holistically assessing DoD IP procurement outcomes other than internal government data calls to acquisition program offices for introspective self-reporting. DoD must address the lack of standards or metrics to evaluate how well a program adopts MOSA or procures IP licenses and how those adoptions and procurements have fostered innovative solutions and competitive prices. First, the DoD IP cadre of experts (IP Cadre) established in 2019 should be empowered and properly resourced to develop standards or metrics. Once established, they can be rigorously applied to an analysis of DoD acquisition programs. By conducting these evaluations, DoD can understand whether its acquisition-program IP strategies are effective. The IP Cadre is well-suited to take on this task because there is currently no centralized collection of IP strategies.
DoD could utilize the IP Cadre with its federated members providing cross-functional expertise to develop uniformed metrics to evaluate effectiveness. The IP Cadre could apply the standards and metrics in periodic reviews to understand gaps in a program’s approach. The IP Cadre could use the results of these evaluations to determine which DoD acquisition programs need assistance.
Part I gives an overview of MOSA by defining it, reviewing the legislative response to DoD’s implementation of MOSA, and includes some historical case studies. Part II of this thesis examines the evolution of MOSA laws and policies, including section 804 of the Fiscal Year 2021 National Defense Authorization Act (NDAA). Section 804 expands the statutory mandate for DoD to adopt MOSA to other acquisition programs beyond major defense acquisition programs to the “maximum extent practicable,” which is more restrictive than DoD Instruction 5010.44, requiring programs to use MOSA when “cost effective and feasible.” The “cost effective and feasible” standard is better from both legal and policy perspectives because it allows some flexibility when a system will be more effective and cost less without MOSA. Although some may consider the “maximum extent practicable” standard to be the better accelerant for wider MOSA implementation, it may prove to have the opposite effect for non-Major Defense Acquisition (MDA) programs. In other words, small programs may feel overburdened with the maximum extent possible standard and decide not to pursue development at all based on initial cost estimates for MOSA. Part III highlights the need for standards to assess procurement IP licenses and MOSA implementation. It suggests that the new IP cadre evaluate the acquisition program’s IP strategies within military services and DoD components. Part III also proposes that Congress should amend 10 U.S.C. §§ 1707 and 3791, mandating military services to gather the necessary program IP strategies for the IP Cadre’s review and evaluation.
Defense Acquisition University (DAU) defines MOSA systems as systems that consist of “highly cohesive, loosely coupled, and severable modules that can be competed separately and acquired from independent vendors.” This approach allows DoD “to acquire warfighting capabilities, including systems, subsystems, software components, and services, with more flexibility and competition.” Further, MOSA uses system interfaces that “share common, widely accepted standards, with which conformance can be verified.” Significantly, MOSA is often referred to as a business and technical approach, requiring personnel trained and skilled in government contracting, engineering, IP law, and program management. Thus, this approach has the effect of avoiding stove pipes to better focus on maximizing the benefits of the procurement.
DAU defines an interface generally as “[t]he functional and physical characteristics required to exist at a common boundary or connection between persons, between systems, or between persons and systems.” In the context of MOSA, 10 U.S.C. § 4401(b)(4) defines a “modular system interface” as “a shared boundary between major systems, major system components, or modular systems, defined by various physical, logical, and functional characteristics, such as electrical, mechanical, fluidic, optical, radio frequency, data, networking, or software elements.”
DoD MOSA Reference Frameworks in Defense Acquisition Programs published in May 2020 explains that, for MOSA, “[o]pen interfaces are required at the boundaries of each module, including (1) open software interfaces (including syntactic and semantic data constraints), (2) open hardware interfaces, and (3) well-defined functions to accompany open interfaces.”
DoD’s MOSA goal is akin to the personal computer (PC) but for major weapon systems like aircraft, helicopters, or tanks. Just like a PC owner can do when upgrading a hard drive or monitor, DoD can use MOSA to take advantage of new technologies from companies other than the prime vendors and upgrade the subsystems using competitive processes, avoiding sole-source dependence on the prime contractor in a situation commonly referred to as “vendor lock.” 10 U.S.C. § 4401(b)(1)(C)(i)–(v) specifically identifies the benefits of MOSA, including cost savings, schedule reduction, opportunities for technical upgrades; and increased interoperability and mission integration. Further, DoD values MOSA because it allows frequent upgrades to components like a radar sensor on an aircraft which increases system capability and longevity. MOSA can also be used as open systems with interoperability across multiple major systems and not just an individual system.
By enabling a procurement environment with competition for upgrades, MOSA saves money and reduces costs for the government by avoiding costly “vendor-locked” upgrades. The inability of the government to compete the upgrades occurs primarily because the prime contractor owns the proprietary data necessary to design, manufacture, and integrate the upgraded subsystem into the overall system. The prime contractor has maximum bargaining power in closed systems when the government wants to upgrade a subsystem. If the DoD wants to explore third-party solutions to upgrade a subsystem, DoD usually must first gain the rights in the technical data and computer software. DoD programs that fail to procure the data rights early in a system’s development may be prevented from doing so later because the contractor may price its IP far beyond what is fair and reasonable or refuse to license it at all.
DoD efforts implementing open systems architectures across its programs go as far back as the mid-1990s. In 1994, DoD set up a special task force called the Open Systems Joint Task Force to facilitate DoD’s implementation of MOSA. In 2004, the Task Force proposed five principles of MOSA: (1) establishing an enabling environment, (2) employing modular design, (3) designating key interfaces, (4) selecting open standards, and (5) certifying conformance to the standards.
First, establishing an enabling environment means creating the technical tools, MOSA frameworks, and a trained workforce for MOSA and IP. It also includes fostering the business environment through contractual relationships with contractors. In 2018, the DoD created a web-accessible database for Modular and Open Systems Standards and Specifications (MOSS), including sample specifications, define system interfaces and architectures with severable components, standard data formats, and compliance testing for compliance testing implementations of standards in support of MOSA. Government contracting business practices create an enabling environment by developing evaluation factors in source selections, contract performance requirements, and detailed MOSA requirements in solicitations.
Second, programs implement modular design as part of the system engineering plan and should support modularity in the system’s overall design. System engineering plans that include MOSA are approved prior to the issuance of a request for proposals for major programs. One recent example that illustrates this process is the Army’s Future Long Range Assault Aircraft (FLRAA). The FLRAA procurement’s request for proposal stated the functional architecture model “shall include allocation of system functions to functional areas of the system, definition of key architecture interfaces, system architectural component definitions, and internal interfaces related to the digital backbone.” In addition to other references to MOSA throughout the request for proposal (RFP), the Army included an evaluation subfactors for the offeror’s proposed architecture approach including MOSA integration.
Other programs may still incorporate modular design during operations and sustainment phases. With MOSA, programs may replace critical subsystems throughout the system’s life cycle and refresh it with new technology. DoD uses modular design in the “decomposition of functions into modules . . . de-coupled interfaces between modules, and . . . specifications and standards that define the primary interactions across/between modules.” An example of a modular design is the central chassis or frame with each primary subsystem connected to it. A program may limit modular designs to critical subsystems, like sensors or radar, rather than modularizing the entire system.
The level of detail for a system’s MOSA can be a point of contention between the military and industry. For example, in the Sikorsky protest of the FLRAA procurement, the protester argued the solicitation’s requirement to “allocate system functions to functional areas of the system” applied only to the functions at the system level, the top level of the system architecture. The Army countered that the solicitation required allocating system functions to the subsystem level. Further, the Army argued that Sikorsky “‘did not apply MOSA requirements . . . holistically across the weapon system and throughout the lifecycle; approach was limited to the avionics subsystem’” in its initial proposal. Ultimately, the U.S. Government Accountability Office (GAO) agreed with the Army and denied the protest. Going forward, it will be likely that a vendor’s proposal that demonstrates compliance with MOSA at the level of detail required by the solicitation will be critical for industry players competing for major procurements.
Using modular designs prevents the problem of proprietary or “black boxes” because the modular design allows any potential vendor to develop a capability and quickly incorporate it into the modular system. Using modular design, programs can replace critical systems more easily because open interfaces connect the “black box” systems.
Third, programs should designate key interfaces early in the acquisition process and continue identifying key interfaces in legacy systems to transition the system’s components to MOSA. Programs should write interface specifications based on the connected modules. Further, less effort is required to integrate modules with good interface specifications. Finally, the designation of a “key” interface depends on the importance of the systems and subsystems it connects.
Fourth, the use of open standards is an essential component to MOSA because multiple vendors may adopt open interface standards in products without needing other vendors’ proprietary technical data to develop system components. The openness of the interfaces will make it easier for innovating companies to develop subsystems and at competitive prices to the government. The 2013 DoD Contract Guidebook for Program Managers provides that open standards are publicly available at no or little cost and are “widely accepted and supported standards set by recognized standards organizations or the marketplace,” which “support interoperability, portability, and scalability.” Open standards support open architecture design, operation, and data communication between systems. Some examples of open standards include Future Airborne Capability Environment (FACE), Command, Control, Communications, Computers, Cyber, Intelligence, Surveillance, Reconnaissance (C5ISR)/Electronic Warfare (CMOSS), and Sensor Open Systems Architecture (SOSA).
Fifth, MOSA requires testing and verification to certify conformance to the open standards for the key interfaces. Conformance to open standards is necessary for the development of the system and throughout the system’s lifecycle. Industry representatives such as the National Defense Industry Association cite evaluation metrics for MOSA implementation as crucial for the industry contractors to measure their efforts against specific standards during program development or its sustainment and operation phase. A program could achieve conformance through incentive fees or acceptance of delivery of the system conditioned upon verified MOSA standards conformance. Conformance incentives can include conditioning sustainment and logistics support on delivering sufficient technical data rights.
Despite DoD’s efforts in the past two decades, Congress’s legislative action in recent years demonstrates that it is dissatisfied with DoD’s progress with MOSA. This section describes Congress’s flurry of legislative activity since 2016.
In the Fiscal Year 2017 NDAA, Congress imposed requirements for modular open system approaches in major defense acquisition programs and established definitions of MOSA terms. Section 802 of the Fiscal Year 2018 NDAA, implemented in 10 U.S.C. § 3791, Management of Intellectual Property Matters within the Department of Defense, directed the DoD to create policies to facilitate the procurement of IP licenses and address other intellectual property issues. Congress also created DoD’s IP Cadre of experts to assist in managing IP issues.
10 U.S.C. § 3791(a) requires the Secretary of Defense, acting through the Under Secretary of Defense for Acquisition and Sustainment, to develop policy on the acquisition or licensing of intellectual property that (1) “enable coordination and consistency across the . . . [DoD] in strategies for acquiring or licensing intellectual property and communicating with industry”; (2) “ensure that program managers are aware of the rights afforded the Federal Government and contractors in intellectual property and . . . fully consider and use all available techniques and best practices for acquiring or licensing intellectual property”; and (3) “encourage customized intellectual property strategies for each system . . . .”
Here, Congress’s dissatisfaction with DoD came with explicit direction to create an IP policy. Surprisingly, DoD had not promulgated an IP regulation when it regulates so many other aspects of acquisition and procurement. 10 U.S.C. § 3791(a) emphasizes that program managers should be aware of the rights of the government and contractors in intellectual property, which also indicates Congress’s perception that DoD personnel fundamentally lacked a basic understanding of IP acquisition and licensing. The encouragement of “customized intellectual property strategies for each system” also implies previous DoD efforts were inadequate to acquire appropriate IP licenses.
Next, in the FY 2020 NDAA § 801, Congress passed a provision that required DoD to create a pilot program to “assess mechanisms to evaluate intellectual property (such as technical data deliverables and associated license rights), including commercially available intellectual property valuation analysis and techniques.” FY 2020 NDAA § 838 ordered a report on the IP Cadre, including a description of the Cadre’s activities for the following year. The Section 838 Report submitted by DoD to Congress included the IP regulation, DoD Instruction 5010.44, Intellectual Property Acquisition and Licensing, fulfilling the requirement of FY 2018 NDAA § 802 directing the Secretary of Defense to develop an IP policy.
In the FY 2021 NDAA, Congress expanded the MOSA requirement in major acquisition programs. Congress expanded 10 U.S.C. § 4401 to note that other defense acquisition programs “shall also be designed and developed, to the maximum extent practicable, with a modular open system approach to enable incremental development and enhance competition, innovation, and interoperability.”
Further, FY 2021 NDAA § 804 amended 10 U.S.C. § 2320 (transferred to 10 U.S.C. § 3771) to provide DoD with government purpose rights in a modular system interface, with the condition that DoD “shall negotiate with the contractor the appropriate and reasonable compensation for such technical data.” The FY 2021 NDAA Conference Report noted that government purpose rights were “indispensable” to expanding modular design in weapons, business, and cybersecurity systems. The Conference Report indicated that government purpose rights are necessary to enable competition for upgrades and sustainment throughout a product’s lifecycle while protecting the proprietary IP embodied within the modules of modular systems. DFARS 252.227-7013(a)(13) defines government purpose rights as
the rights to—(i) Use, modify, reproduce, release, perform, display, or disclose technical data within the Government without restriction; and (ii) Release or disclose technical data outside the Government and authorize persons to whom release or disclosure has been made to use, modify, reproduce, release, perform, display, or disclose that data for United States government purposes.
Further, government purpose rights for interfaces provides DoD with the ability to provide the technical data for proprietary interfaces and provide the data to other contractors to develop interoperable components. Consequently, this provision will likely incentivize contractors to join efforts such as standards consortiums and adopt open interfaces to compete for DoD business. While government purpose rights seem very broad, there are limits to the government’s ability to release the data to the public or commercialize the data rights.
FY 2021 NDAA § 804 directed the DoD Undersecretary of Acquisition and Sustainment to issue regulations that “facilitate [DoD’s] access to and utilization of modular system interfaces” and “fully realize the intent” of 10 U.S.C. chapter 144B by enabling MOSA and communication across major systems. Section 804 also states that the regulations promulgated should “advance the efforts of the Department to generate diverse and recomposable kill chains.” The FY 2021 NDAA does not explain or define “recomposable kill chains” so a brief exploration of the concept is in order.
The kill chain and its importance to national security is the subject of Christian Brose’s excellent book, The Kill Chain: Defending America in the Future of High Tech Warfare. Brose served as Senator McCain’s Staff Director in his role as Chairman of the Senate Armed Services Committee and advised him on national security issues. In Kill Chain, Brose analyzes the well-intentioned but misguided obsession of the DoD, industry, and even Congress on large platforms such as individual ships, aircraft, or other military capabilities, instead of the fundamental importance of the kill chain. He describes the kill chain as involving three steps: (1) gaining an understanding of the situation; (2) deciding what to do about it; and (3) acting to create an effect in order to achieve an objective. He argues that each step is necessary to deliver an effect, and these effects may be lethal or nonlethal.
While not explicitly defined in this book as “recomposable,” Brose describes recomposable kill chains in contrast to the single and essentially linear kill chain that exists today with its dependence on large and expensive platforms. For example, a kill chain may involve a sensor or fused intelligence linked to a relatively encumbered headquarters node that serves as the decision-making cell connected to the lethal end of the kill chain like an armed drone. While Brose does not delve into MOSA, he does illustrate the problem MOSA addresses. For example, Brose cites a senior military officer that lamented that “[t]he main problem . . . ‘is that none of my things can talk to each other.’” Communication across DoD’s platforms is a large part of Joint All-Domain Command and Control (JADC2). DoD’s concept to connect sensors from all military services into a unified network is trying to establish MOSA as a vital aspect of the architecture.
JADC2 assists commanders in making decisions by collecting data from sensors, identifying targets using AI to process the data, and recommending the optimal weapon system to engage the target. DoD analogizes JADC2 as something akin to the ride-share application Uber that combines an application for the rider and another for the driver. The Uber algorithm determines the optimal match of passenger and driver based on distance, travel time, and the number of passengers and provides directions to the destination to the driver. MOSA and common consensus-based open standards can enable an Uber-like system of systems so that concepts like JADC2 can be built.
The vulnerability to our current way of fighting is that if an adversary can take out any of those links in the chain to include the communications between the links in a traditional kill chain, it is rendered ineffective. Thus, it can be inferred that “diverse recomposable kill chains” in FY 2021 NDAA § 804 are comprised of decentralized systems on the battlefield that serve as intelligence sensors, decision-making nodes, and the kinetic or non-kinetic capabilities delivering effects. There are many options to deliver a lethal or non-lethal effect that a decision-maker can call upon in combat. If a military asset is at the edge of a formation, it communicates quickly to other members of the formation. For example, an aircraft detects an incoming medium or long-range adversary missile threat targeting a Navy ship a further distance back. The forward aircraft using decentralized data links can send the message back through satellites or other communication nodes to a central command post, and CJADC2 efforts are focused on improving communications with military assets using these data links. Further, suppose one node in the kill chain is taken out. Another platform could take its place, thus reducing the ability for the adversary to focus on one or two targets that, if neutralized, take away the U.S. military advantage in a combat engagement.
To field recomposable kill chains, DoD must develop multiple interoperable systems such as tanks, aircraft, command and control systems, unmanned drones, artillery, or satellites that communicate well in any given combat situation. Diverse recomposable kill chains also rely on less costly, unmanned, and, in some cases, expendable capabilities.
In recent years, section 833 of the FY 2022 NDAA established a pilot program on acquisition practices for emerging technologies to assist in transitioning emerging technologies to acquisition programs or operational use. This pilot program included “alternative intellectual property strategies, including activities to support modular open system approaches . . . and reduce life-cycle and sustainment costs.” The FY 2023 NDAA, section 806, amended 10 U.S.C. § 4324(b), which governs major acquisition system lifecycle management, to mandate that the plans and strategies also cover “(G) an intellectual property management plan for product support, including requirements for technical data, software, and modular open system approaches.” Further, section 841 of the FY 2023 NDAA amended 10 U.S.C. § 3791, directing the Secretary of Defense, through the Under Secretary of Defense for Acquisition and Sustainment, to establish guidelines and resources, including case studies, on the acquisition of intellectual property. These guidelines included “intellectual property strategies and other mechanisms supporting the use of modular open system approaches” and definitions of modular system interfaces. Significantly, Congress directed these case studies and resources when DoD could have implemented within its preexisting authorities. The House and Senate Armed Services Committee Reports accompanying the FY 2024 NDAA provided continued interest in MOSA.
It is unclear whether the trend of MOSA legislation will subside, continue, or merely clarify MOSA provisions going forward. However, this section illustrates congressional dissatisfaction with DoD’s lack of progress on MOSA, starting in 2016, through adding and refining laws requiring and enabling the use of MOSA in DoD programs,. Many of the changes were, arguably, within DoD’s pre-existing statutory procurement authorities.
MOSA is not a new concept, and DoD attempted to implement MOSA in various acquisition programs. However, with all the policy guidance and knowledge of MOSA approaches, DoD successes are few. MOSA implementation in the Virginia class submarines and the Future Airborne Capability Environment (FACE), a common set of standards for avionics software are examples described in this section. In the scope of DoD’s extensive acquisition system, these limited efforts can be viewed as evidence of the overall disappointment in MOSA implementation or as significant individual program breakthroughs for MOSA. However, the following descriptions of real-world examples and new initiatives using MOSA build important context. Without some real-world examples to draw upon, discussing MOSA quickly devolves into terminology and abstraction, which lacks a grounded base in DoD’s real-world MOSA efforts.
a. Virginia Class Ships
The Virginia class ships are nuclear-powered attack submarines with MOSA characteristics. The U.S. Navy procures about two Virginia class ships per year, at a current budget of over $7 billion per year. These expensive ships provide a critical naval capability. The Virginia class ships’ command-and-control systems use MOSA and commercial-off-the-shelf (COTS) systems. For example, the Common Submarine Radio Room (CSRR) command-and-control is a MOSA system. The CSRR spread to other Navy ships because of its open system architecture and ability to upgrade over time. In the late 1990s and early 2000s, DoD validated the first requirement for MOSA in submarine command-and-control systems. This requirement coincided with the development of Internet-based technologies for communications. After the CSRR gained initial operating capability (IOC) in 2006, the CSRR spread from the Virginia class ships to the Ohio Class ships, Seawolf and Los Angeles class ships. Further, the Virginia class ships also use MOSA-based sonar arrays, allowing upgrades advanced technology on ships throughout their lifecycle.
Even with MOSA, Virginia class ships should not be mistaken for a “plug-and-play” ship where systems are easily swapped out quickly like a personal computer. Many testing and evaluation obstacles prevent easy upgrades to the CSRR by simply swapping parts across the submarine fleet. The barriers include testing for second and third-order impacts on adjacent systems that may change the overall system functionality.
However, the Virginia class ships’ MOSA use still represents a success on a major acquisition program. These ships are big and expensive, so successful MOSA implementation is a step in the right direction towards a day when Navy ships are composed of a large chassis connecting advanced capabilities, fielded rapidly, and integrated just like a personal computer.
b. Future Airborne Capability Environment (FACE)
FACE is one of several open architectures characterized as both a technical standard and a business standard. The FACE Technical Standard is currently developed to enable secure and interoperable avionics to DoD. As a business standard, FACE provides software standards promoting innovative development of secure avionics components that define the ownership of hardware and software system interfaces.
Significantly, FACE is a public-private consortium comprised of the Army Program Executive Office - Aviation, Air Force Life Cycle Management Center, and prime contractors such as Boeing, Lockheed Martin, Raytheon, and others. The House conference report for FY 2021 NDAA stated support for the efforts of public-private consortiums to create open standards such as FACE for use in DoD weapon systems. The interfaces powered by FACE will link different aircraft components under a common open architecture. One of the exciting features of FACE is an application database like the iPhone App Store. The FACE site is also searchable by the type of government data rights in the software.
c. Other Open Standards
Several military services use the open standards Sensor Open Systems Architecture (SOSA) and the U.S. Army’s Command and Control, Intelligence, Surveillance and Reconnaissance and Electronic/EW Modular Open Suite of Standards (CMOSS). The FY 2022 NDAA House Armed Services Committee Report commended these standards but identified their use only in specific capabilities and missions as obstacles for use in Army and Air Force programs. To address these obstacles using one its preferred tools of oversight, Congress directed the Secretary of the Air Force to submit a report about the implementation efforts for SOSA. The Senate Armed Services Committee report accompanying the FY 2024 NDAA cited encouraging progress on several MOSA standards for Air Force and Army programs including SOSA and CMOSS.
Similarly, Positioning, Navigation, and Timing (PNT) technologies are well-suited to use MOSA. PNT technologies include GPS receivers, but DoD is pursuing new technologies, such as inertial sensors, atomic clocks, environmental image maps. These PNT reference architectures “specif[y] the physical, functional, or military operational environment interface characteristics of systems, subsystems, equipment OS, assemblies, components, items, or parts to permit military services’ reference architectures to permit interchangeability, interconnection, interoperability, compatibility, or communications.” The military services are developing PNT reference architectures with MOSA. The Army plans to create a DOD-wide MOSA PNT reference architecture to standardize common elements across PNT systems with defense industry input.
The Army and Navy take different approaches to create PNT standards. The Army’s approach specifies its PNT interface standards, while the Navy evolves its PNT interface standards over time. Significantly, the Defense Advanced Research Projects Agency (DARPA) is developing the All Source Positioning and Navigation standard for PNT, which some consider the “de facto” PNT communication standard, and like the FACE standards because its development relies on collaboration between industry, DoD, and other stakeholders to establish the standard.
One technology in development that could solve interoperability problems between systems is the DARPA System-of-Systems Technology Integration Tool Chain for Heterogeneous Electronic Systems (STITCHES). STITCHES is a government-owned software solution designed to integrate existing systems by automating communication between systems without requiring hardware or software upgrades. STITCHES does not rely on common interface standards or upgrading components, but instead connects existing capabilities quickly with low latency. STITCHES promises interoperability between legacy systems with open architectures.
It is essential to distinguish these open standards from actual capabilities that deliver real-world effects. The standards themselves are a core element of successful MOSA, but standards are not the system, and the U.S. military cannot field an open standard to defeat adversaries. The adoption of open standards represents the promise that DoD systems will be less proprietary and enable the greater use of MOSA. Most importantly, using open standards can eliminate the stovepiping of expensive platforms that fail at communicating basic information to each other.
An online search of defense contractor websites for evidence of what they think of MOSA results in ample material. The trend shows certain industry players think MOSA is good for their business development. For example, in Collins Aerospace’s online publication, it highlights that Collins has utilized open architectures for over twenty years in order to provide DoD customers with flexibility. Talking about MOSA, one representative stated that, while it enables competition, “which is a goal for the government, it also provides us with additional capability in the form of open system components that we can incorporate into our systems.” On the BAE Systems website, it states the positive reasons for implementing MOSA unequivocally: “In addition to the broad benefit of making defense products and systems more cost-effective with more interoperability, MOSA is also designed to spur competition among defense and intelligence community partners.” The third example comes from Curtiss-Wright Defense Solutions and a position (white) paper entitled “The MOSA Imperative,” which is available for download on its website and is written with the aim “to put the increasingly relevant MOSA to use better.” The paper ends with a quotation from the CEO talking about its company’s MOSA Task Force and sums up the company’s support for MOSA: “These new solutions will speed the design, test and deployment of new technologies that meet the demanding environmental requirements for U.S. and allied combat forces.”
The above are only a small sampling of defense contractors who are highlighting their initiatives to fully embrace MOSA. By the enthusiastic tone of their writings, it appears that some companies clearly see the potential to gain greater DoD contract opportunities by adopting and promoting MOSA to the targeted audiences, both military and potential industry partners. Moreover, some companies seem to be championing MOSA for the benefits that it will provide to the smaller companies. Of note, BAE Systems, who is found in the top ten, or even top five, of the most valuable aerospace and defense contractors in the world, makes this point about MOSA: “The modularity central to MOSA standards can give small or specialized companies more openings to develop solutions for specific modules instead of losing opportunities because they didn’t develop the entire vehicle, aircraft, ship, or communication system, etc. that needs an upgrade.” However, since BAE Systems is a British company, it shows the candor some would expect from the company that is headquartered in the city of Westminster, London, when it writes, “Finally, it is important to recognize that MOSA is not just a good idea, it’s a legal requirement – specifically Title 10 U.S. Code 2446a.(b), Sec 805 of DoD Acquisition Regulations.” From a discussion of some successes in DoD with implementing MOSA and positive support for MOSA from certain corners of the industrial base, the focus turns to how the adoption of MOSA can be better.
The GAO reviewed DoD’s MOSA implementation efforts several times and concluded that it needs improvement. In 2013, GAO reviewed DoD’s MOSA implementation in unmanned aircraft systems (UAS). The GAO report criticized DoD’s implementation efforts for MOSA and recommended that DoD should define “metrics to track programs’ implementation of an open systems approach.” Interestingly, despite DoD’s partial concurrence, the GAO closed this recommendation without DoD implementing it. The recommendation’s closeout remarks stated that DoD had not “developed metrics to track program’s implementation of an open systems approach because . . . open systems is a complex issue and DOD has not identified what to measure to track its effectiveness,” and noted that DoD still needed to “identify the elements” required to implement MOSA.
Since GAO’s report criticized DoD for its lack of tracking and metrics almost ten years ago, the GAO has found that DoD is only beginning to roll out a tracking system for IP or data rights with a pilot program aided by “an artificial intelligence knowledge-sharing model.” The GAO’s November 2021 report reviewing DoD’s IP acquisition contained no reference to the 2013 recommendation for a MOSA tracking system. Instead, GAO’s top recommendation in its 2021 review focused on updating DoD guidance to address the acquisition of detailed manufacturing and process data (DMPD). DMPD is the type of detailed data needed to make more complex repairs, compete for subsequent upgrades, and allow for third parties to manufacture spare parts. While DMPD data is important, GAO chose a limited recommendation and avoided the issue of MOSA. Since the focus of the 2021 review was on IP and data rights, the reason why MOSA did not garner any attention is somewhat understandable. However, it was a missed opportunity to revisit the metric tracking recommendations from 2013 because, rather than seek DMPD, improving MOSA systems with good plug-and-play designs reduces the need for DPMD.
Two primary obstacles exist to the defense industry fully adopting a MOSA in its approach. The first is structural and historical. The modern defense industry has consolidated from over 100 prime contractors in the 1990s to only five today. Consolidation negatively impacted defense industry innovation and led to a business model focused on securing large contracts and maintaining them over time. Large prime contractors are also not the leaders in agile software development and cutting-edge artificial intelligence that will power military advantage in the future. For example, the F-35 possesses the most capable computers in a DoD’s major weapon systems but has much less computing power than a modern car with computers explicitly designed for AI. Further, the prime contractors are contracted by DoD to integrate systems. In that role as a lead systems integrator, opening subsystems of a large platform to competition is counter to their business interests.
Aside from the historical and structural background, a counterpoint can be made that imposing MOSA on defense contractors now may actually be counterproductive for the DoD and stifle innovation from industry. The idea is that companies may choose not to invest precious capital on research and development for fear that MOSA will flatline return on investments if the DoD later passes the innovation on to other companies. However, this view should not be championed when considering the business prospects of the defense industrial base as a whole given the industry business cases for MOSA. As detailed in the National Defense Industrial Association’s (NDIA) report, Modular Open Systems Approach: Considerations Impacting Both Acquirer and Supplier Adoption, adopting MOSA may numerically increase defense company participation. The NDIA report acknowledges that MOSA could benefit the defense industry by allowing more business opportunities with the government. In other words, innovation will spring from many corners of the industrial base; thus, there will be more give and take among the companies investing in research and development. In the end, there likely will be a net positive for most companies that innovate and invest in research and development since they likely will be seen as technological leaders.
DoD must train and hire those with the right skills for a more capable acquisition workforce to meet its objectives for MOSA. GAO recommended in 2013 that DoD assess its service-level and program offices and develop strategies to address any identified capability gaps. DoD’s lack of focus was highlighted in the DoD Acquisition Workforce Strategy 2016–2021, which lauded education and certifications of the acquisition workforce, but did not mention any specific skills or education related to IP or MOSA. Further, the goals established in this strategy failed to address the shortfalls in the expertise needed for improvement. The DoD 2024 Acquisition And Sustainment Workforce Framework identified software and innovative acquisition methods related to upskilling the acquisition workforce; however, the framework did not specifically mention IP or MOSA. These omissions demonstrate insufficient top-down prioritization of experience, training, and education related to IP and MOSA. Without this prioritization, one should not expect measurable improvements in the DoD acquisition workforce.
As of August 2020, DoD had not conducted the recommended assessments, and GAO closed its unimplemented recommendations. GAO stated that it was “unclear the extent to which DOD’s acquisition workforce has the skills to effectively oversee the implementation of an open systems approach on weapon acquisition programs.” In November 2021, just over a year later, GAO’s followed up with similar criticism of DAU’s overall implementation of its strategy to improve training in IP acquisitions. DAU established a strategic plan identifying over sixty activities to enhance IP acquisitions within DoD. GAO concluded that a lack of resources inhibits DAU from conducting all of the activities in its strategy and does not prioritize activities past 2023 despite a five-year planning timeline. DAU has not identified who should receive training, but this is a task that the IP Cadre could assist by identifying required personnel by career field.
DAU could also meet its goals by expanding certification programs for IP procurement in government contracting by infusing the training with in-person and technically aided gamified simulations of source selections, solicitations, and negotiations. These simulations could involve acquiring data rights, which are far better than the commonplace rote educational techniques of memorization and testing. These needed improvements should use aggressive timelines to meet its training and education objectives guided by the IP Cadre and DAU.
According to the FY 2022 Report to Congress on Pilot Program on Intellectual Property Evaluation for Acquisition Programs, DAU has created two workshops on IP Strategies, one for all acquisition workforce members and the second for specific program office teams. A feature of the workshop is the application of knowledge to “a major case study to clarify and reinforce concepts discussed.” Although DAU has made strides into training the acquisition workforce in general areas related to IP and MOSA, more advance level training must be developed given the unmeasured long-term effects of MOSA for innovation and cost savings.
Congress and DoD contribute to the obstacles to MOSA progress because of the inefficiency of the legislatively mandated requirements generation process, programming, budgeting, and acquisition system. The acquisition process for a major capability or weapon system has five phases with three milestone decisions (MS A, B, and C) as detailed in the following table from DoD Instruction 5000.85, Major Capability Acquisition:
Figure 1: Major Capability Acquisition Framework
Per 10 U.S.C. 4402(e), before entering the engineering and manufacturing development phase, the MDA must incorporate clearly defined key interfaces for major system platforms, major system components, and between those components and platforms. Further, the MDA should ensure that the interfaces use widely supported standards and plan to acquire necessary interface IP licenses. The Milestone B MDA can declare in writing that, for a program that does not use MOSA, its use is “not practicable.” These requirements are additions to the Milestone B review and approval requiring adequate mitigation of risks to support the approval to the subsequent phases of design, development, and production. These risks include technology maturation levels, security, engineering, integration, manufacturing, sustainment, and costs.
However, once a program reaches the engineering and manufacturing development (EMD) phase, the design for the system may not be final. Per DoD Instruction 5000.85, Major Capability Acquisition, “[t]he purpose of the EMD phase is to develop, build, test, and evaluate a materiel solution to verify that all operational and implied requirements, including those for security, have been met, and to support production, deployment and sustainment decisions.” While the mandate to define system interfaces earlier than the EMD phase is a good starting point, it is not the end of MOSA implementation in a major system. The EMD phase requires that “[t]he program will complete all needed hardware and software detailed designs. A critical design review assesses design maturity, design build-to or code-to documentation, and remaining risks, and establishes the initial technical baseline.”
The EMD phase marks the point in the acquisition process in which the “system design is ready to begin pre-production prototype hardware fabrication or software coding with acceptable risk.” Producing a prototype with acceptable risk is a significant step in the acquisition process. Programs may not have identified all interfaces before the design is complete. To prematurely designate interfaces could lead to the inaccurate designation of interfaces and leave MOSA as an afterthought, having already passed the necessary milestone decision.
One of MOSA’s legislative developments is the requirement in 10 U.S.C. § 4401 for its use in most acquisition programs “to the maximum extent practicable.” This standard differs from the DoD Instruction 5010.44, which requires that programs use MOSA only when “cost effective and feasible.” Further, per 10 U.S.C. § 4402(e)(1), the milestone decision authority must document the use of MOSA in a system before Milestone B approval, but may simply determine in writing that implementing MOSA is not “practicable.” Interpretation of the terms “practicable” and “to the maximum extent practicable” will drive deviation from MOSA requirements in DoD acquisition programs.
Reviewing the legislative history will assist with generating understanding. Section 805 of the FY 2017 NDAA first established the MOSA requirement in 10 U.S.C. § 4401 as follows: “A major defense acquisition program that receives Milestone A or Milestone B approval after January 1, 2019, shall be designed and developed, to the maximum extent practicable, with a modular open system approach to enable incremental development and enhance competition, innovation, and interoperability.”
In Section 804 of the FY 2021 NDAA, Congress expanded the MOSA requirement in major acquisition programs by adding that other defense acquisition programs “shall also be designed and developed, to the maximum extent practicable, with a modular open system approach to enable incremental development and enhance competition, innovation, and interoperability.” This section is still pending implementation into the DFARS.
10 U.S.C. §§ 4401 and 4402, and their enacting sections in the respective NDAAs, do not contain any definitions of the phrases “to the maximum extent practicable” or “practicable.” Likewise, the phrase “cost effective and feasible” is also not defined within DoD Instruction 5010.44. Inherently, DoD programs will seek to find flexibility in how it may best meet its requirements, which may lead the milestone decision authorities and program managers within DoD to apply a broad interpretation of the term “to the maximum extent practicable.” To resolve the differences in the language, either the statutory standard of the “maximum extent practicable” needs to change, or DoD Instruction 5010.44 could change simply from “cost effective and feasible” to the “maximum extent practicable.” If challenged, the courts could choose to recognize that the DoD standard to implement MOSA when it is “cost effective and feasible” is synonymous with “to the maximum extent practicable.”
The DoD standard of “cost effective and feasible” makes sense as a policy promoting efficiency because, in some circumstances, the system will be more effective and cost less without MOSA. In a system like a single satellite, or a tightly integrated system like a missile, MOSA may be “practicable,” i.e., possible or feasible, but not considered “cost effective.”
No GAO or court cases address “to the maximum extent practicable” pertaining to MOSA. One case analyzing “to the maximum extent practicable” in government procurement, the Palantir protest, concerns the government’s obligation to conduct market research on the availability of commercial items to meet the government’s procurement needs. The Palantir bid protest involved procuring an intelligence processing and dissemination system. Palantir argued that 10 U.S.C § 2377(b) requires agencies to acquire commercial items to meet their needs “to the maximum extent practicable.” GAO denied the protest determining the U.S. Army’s decision reasonable to use non-commercial items. Next, Palantir filed another protest at the Court of Federal Claims (COFC), which ruled in Palantir’s favor, granting a permanent injunction enjoining the Army from awarding the contract.
The Government appealed this ruling to the Court of Appeals for the Federal Circuit (CAFC). CAFC passed analyzing the standard “to the maximum extent practicable,” to the lower court. COFC, however, reviewed the phrase in a detailed discussion in its decision.
Palantir emphasized at COFC the word “maximum” as driving the phase’s meaning. In contrast, the government argued the phrase “‘to the maximum extent practicable,’ qualifies all of the agency’s responsibilities, e.g., its responsibility to define requirements in terms of functions, performance, or essential physical characteristics, and its responsibility to define requirements so that commercial items may be procured to fulfill such requirements.” Next, the court cited the dictionary definitions of “maximum” as “great, high or intense as possible as permitted” and “practicable” as “able to be done or put into practice successfully.” The court concluded the phrase “make[s] it clear that a factual, case-by-case, compliance approach with the statutory dictate that an agency consider commercially available alternatives is expected.”
The court further opined that Congress deliberately used the word “maximum” by examining the legislative of the House and Senate version of the Federal Acquisition Streamlining Act of 1994 (FASA). The court reviewed the House and Senate Conference reports and noted FASA incorporated the word “maximum” as it evolved. Significantly, the court concluded that the Army could not ignore the word “maximum” and found the Army’s decision arbitrary and capricious not to allow competing commercial items proposals. The Court of Federal Claims opinion is not binding precedent but provides a useful analysis when reviewing the phrase “to the maximum extent practicable,” and future courts and tribunals may adopt the court’s rationale as applied to MOSA in 10 U.S.C. §§ 4401 and 4402.
Next, DoD Instruction 5010.44 uses a standard that differs from the statutory requirement of “to the maximum extent practicable.” If the standard of “cost effective and feasible” is to be read as synonymous or consistent with “to the maximum extent practicable,” the question then becomes what makes MOSA “cost effective” and “feasible.” The best interpretation is one that promotes good results without high costs because MOSA’s money-saving benefits materialize later in a program’s life.
First, the term “cost effective” may conflict with the phrase “to the maximum extent practicable.” The Merriam-Webster Dictionary defines “cost-effective” as “producing good results without costing a lot of money.” Similarly, the Cambridge Dictionary defines the term as “it is a good value for the amount of money paid.” The dictionary definitions provide agencies flexibility to determine what constitutes good value for money. Using an understanding of “cost effective” that focuses on paying less money up front does not make sense considering these characteristics of MOSA-driven systems.
Whether MOSA is “feasible” relies primarily on technical analysis. For example, a large satellite with unique proprietary sensors may not be feasible to seek an industry to submit a design that utilizes MOSA. Further, using MOSA in a large satellite would not be cost-effective even if feasible. There also may be other systems that, by their nature or limited operational use, may not be cost-effective to use MOSA in the system’s design, such as commercial products. Finally, IP Cadre could develop standards for assessing the cost-effectiveness and feasibility of MOSA to ensure consistent application of the standard across DoD.
DoD IP Acquisition policy, DoD Instruction 5010.44, requires that each DoD program create an IP strategy that will “identify and manage the full spectrum of IP and related matters.” The IP strategy should cover long-term sustainment requirements, including total ownership costs of necessary IP deliverables and license rights. Consistent with 10 U.S.C. §§ 2320 and 4401-4403, the IP strategy should address how IP supports MOSA. Further, a program should identify the IP and its costs for major systems interfaces and use widely supported and consensus-based standards when feasible.
While each program requires an IP strategy, there is no requirement to evaluate the strategy’s effectiveness. The programs need merely to create a paper strategy that complies with DoD Instruction 5010.44 without understanding whether it is effective or taking steps to implement. The IP Cadre is responsible for assisting each program in developing its strategy, and the best way to achieve this goal is by creating evaluation criteria and reviewing programs to determine where help is needed. This section recognizes the Undersecretary of Defense for Research and Engineering’s role overseeing the implementation of MOSA in DoD through the MOSA Working Group (MOSWG). The IP Cadre participates in the MOSA Working Group (MOSWG) and could fulfill this proposed responsibility in this section to enable the work of the MOSWG. Further, this recommendation is similar in nature to the one described in the Report to Congress on Pilot Program on IP Evaluation for Acquisition Programs Report for Fiscal Year 2022 dealing with clear and concise proposal evaluation criteria language but the authors’ recommendation here goes further than setting criteria for source selection. The recommendations outlined below includes creating evaluation criteria related to how IP would support MOSA post-award and during future sustainment.
Before discussing program evaluation schemes for MOSA and IP, it is crucial to understand the legislative purpose and background of establishing the IP Cadre. An examination of the genesis of the IP Cadre concept and deployment will help answer the question as to whether the IP Cadre can do a better job than the established evaluation method, the status quo. In section 813 of the Fiscal Year 2016 NDAA, Congress passed a provision directing the Secretary of Defense to establish a government-industry panel of experts to provide recommendations for DoD’s IP procurement. This effort complimented an extensive review of the acquisition system under section 809 of the Fiscal Year 2016 NDAA. The 809 Panel comprehensively reviewed the defense acquisition system and delivered modernization recommendations. The narrowly focused 813 Panel reviewed the government’s procurement of IP licenses and examined 10 U.S.C. §§ 2320 and 2321.
The 813 Panel concluded in its final report that the DoD acquisition workforce lacked the expertise in IP-related matters and recommended the creation of a cadre of experts from many disciplines to support DoD acquisitions. The 813 Panel report envisioned that an individual participating in this cadre performs work part-time. The panel also noted that a centralized organization of this cadre could even task out work such as reviewing IP strategies. Without elaboration from the panel, one can surmise that taskers from the cadre would be done with purpose and design so that the increase in knowledge and experience within the DoD would raise all boats. Just as the 813 Panel submitted its final report to Congress, section 802 of the Fiscal Year 2018 NDAA directed DoD to create the IP Cadre.
Per 10 U.S.C. § 1707(a), the IP Cadre’s purpose is “to ensure a consistent, strategic, and highly knowledgeable approach to acquiring or licensing intellectual property by providing expert advice, assistance, and resources to the acquisition workforce on intellectual property matters, including acquiring or licensing intellectual property.” DoD Instruction 5010.44 mirrors its statutory purpose and designates DAU to train the acquisition workforce in procuring IP licenses and use. Professor Ralph Nash lauded the creation of the IP Cadre, in part due to skepticism that DAU can adequately train on a large scale.
The evolving IP Cadre lead office in the Office of the Undersecretary of Defense for Acquisition and Sustainment remains small, consisting of five OSD government civilian employees (including the director) supported by contractor personnel. These positions serve as the IP Cadre lead personnel for the following four organizational lines of effort: law, regulations, and policy; program management and implementation for acquisition programs; sustainment and technical data management; and communications, knowledge, and performance management. The IP Cadre notably lacks IP valuation and financial analysis expertise; however, DoD’s current IP valuation pilot programs are intended to address these skill gaps. Significantly, the IP Cadre’s organization and lack of personnel impede the fulfillment of its legislatively directed responsibilities.
The IP Cadre utilizes a federated approach, relying on experts from the military services and DoD Components, and civilian employees may work for the IP Cadre upon request of its Director. Currently, the Air Force contributes eleven personnel; the Army, fifteen; and the Navy, seven. These additional personnel supporting the main IP Cadre office may not be enough to provide broad-based assistance to specific programs. However, the Army is increasing its capability by recently establishing an IP cell of experts with ten personnel. It is unclear if DoD is willing to grow the main office or rely on the federated approach. Further, DoD lacks clear rules for assigning work to the federated IP Cadre, which may cause tension because the work will be in addition to their full-time jobs. Current limits on resources, personnel, and funding make it unlikely DoD will pursue building up a large and robust IP Cadre organization. In other words, as it stands today, the IP Cadre may not have the means to organically scale to handle the ambitious and ever enlarging mission.
In sum, the IP Cadre cannot assist every program given its small size, but it can develop evaluation criteria and assess each program’s effectiveness to achieve the Cadre’s legislative purpose. After all, given 10 U.S.C. § 1707(a)’s direction “to ensure a consistent, strategic, and highly knowledgeable approach to acquiring or licensing intellectual property by providing expert advice, assistance, and resources to the acquisition workforce on intellectual property matters, including acquiring or licensing intellectual property,” it is reasonable to ask the IP Cadre to direct some of its expertise to building tools for the acquisition workforce. It is obvious that many of DoD’s hundreds of major defense acquisition programs and Acquisition Category (ACAT) Levels II and III programs could use the assistance of the IP Cadre. The primary challenge is identifying where the IP Cadre puts its limited resources. The recommendation here is not for the IP Cadre to lead the charge to take over the MOSA evaluation and tracking from the engineers, technicians, and other experts; but rather, look to the IP Cadre to refresh existing tools or develop new ones to place in the hands of the acquisition workforce and technical personnel across the DoD.
Despite its small size, the IP Cadre centralized office and federated membership are well-positioned to assess DoD acquisition programs’ IP and MOSA implementation. Without evaluating the performance of programs in IP licensing and MOSA, improvements cannot be made, lessons will not be learned, and continued failure will be the norm. DoD’s past attempts to evaluate MOSA were not sustained or widespread. In the 2000s, the Navy developed the Open Architecture Assessment Model (OAAM), which was a method of assessing the openness of programs. More specific to MOSA, the DoD’s Open Systems Joint Task Force (OSJTF) created the MOSA Program Assessment and Rating Tool (PART) intended for use by DoD program managers to assess MOSA implementation throughout a program’s life cycle. MOSA PART was designed to provide acquisition decision-makers with an objective assessment measuring a program’s MOSA implementation. MOSA PART used five indicators for evaluation, including the enabling environment, modular design, key interfaces, open standards, and conformance.
As early as 2005, the Assistant Secretary of the Navy (Research, Development, and Acquisition) directed Navy programs to conduct assessments using the Open Architecture Assessment Tool (OAAT) and created a set of evaluative questions. OAAT took MOSA PART and expanded it to create a detailed technical and programmatic evaluation resulting in a numerical score. The evaluation questions addressed the following criteria: open architecture, modular open design, interface design and management, treatment of proprietary elements, open business practices, peer review rights, and technology insertion. The technical criteria questions assessed a program’s interoperability, composability, reusability, maintainability, and extensibility.
Although OAAT is in Version 3.0, the last update to the tool was in 2009 and is in need of a refresh or even a complete overhaul. Rather than making incremental improvements and organically developing with the rest of acquisition reforms, OAAT may be locked in a 2009 mindset. Focusing on what may be the OAAT’s main deficiency is its evaluation criteria are limited because they produce a numerical score, which can become a “self-licking ice-cream cone,” meaning the scores become an end unto themselves. A program striving for a high score for its own sake can lose sight of improving mission accomplishment and fielding capabilities with MOSA.
Another criticism of numerical evaluation scores comes from the mechanical application of the scores without looking behind the score. Analogies can be made to procurement GAO evaluation bid protest precedent. Namely, agencies should not mechanically apply numerical scores when comparing offers in a source selection. Instead, scores should be used, if at all, as a guide to intelligent decision-making. Qualitative assessments are essential, and narrative answers provide critical information revealing problem areas. Any new assessment developed by the IP Cadre should encourage detailed explanations allowing for deeper technical and business analysis. Another flaw in this evaluation scheme is that comparative assessments across programs using numerical scores may have little utility. At worse, assessment tools could produce misleading results for programs that utilize commercial products or highly proprietary subsystems that produce lower scores but use sound approaches to IP licensing and MOSA in context. Perhaps like the pilot program tracking IP and data rights using an AI knowledge-sharing model, the IP Cadre could utilize a generative AI tool to help produce a deeper technical and business analysis.
Another limitation of the OAAT 3.0 tool is its “litmus test,” which limits the maximum score that any program may achieve in the assessment if a “crucial attribute (e.g., modularity, reuse)” has not reached a certain level. The example questions for the tool are insightful, covering both business and technical areas, and include “[t]o what extent does the system’s architecture exhibit modular design characteristics?” and “[t]o what extent are open standards selected for key interfaces?” and “[t]o what extent can system components be substituted with similar components from competitive sources?” A better way to achieve the intent of the OAAT 3.0’s “litmus test” is not to determine whether a program can reach a maximum score. These questions are fundamental and should be answered first to identify areas of assistance, enabling the IP Cadre to respond quickly to problems.
Example evaluation questions could draw upon the work from MOSA PART and OAAT version 3.0. The evaluation questions and criteria could focus on the technical and business aspects of MOSA in the following categories: (1) technical feasibility and conformance to requirements, (2) business and contracting, and (3) operations and sustainment.
The first category, technical feasibility and conformance to requirements, could include evaluation criteria about the technical development of MOSA in an acquisition program. This includes identifying interfaces and selecting open standards if appropriate for the capability. Next, the business and contracting category should understand how a program uses its business and contracting tools to enable MOSA. These tools include questions evaluating the use of solicitation provisions, source selection evaluation criteria related to IP and MOSA, and business activities of the program that promote the use of MOSA within the program. The final broad category for analysis is operations and sustainment. Evaluations could include how the IP strategy reduces costs in sustainment, whether the sustainment strategy plans to utilize MOSA to compete for upgrades, and whether the program forecasted the overall costs of refreshing technology, including acquiring necessary licenses.
The IP Cadre should develop questions for these categories focused on eliciting responses that drive understanding of assistance that it can provide to programs. A good evaluation scheme for IP strategy’s effectiveness avoids focusing on the amount of IP procured. Measuring the number or scope of licenses is counterproductive because it incentivizes procuring more rights than necessary. Any new evaluation scheme should also evaluate the “legacy” programs because it could reveal incorporating MOSA is feasible or cost effective in the operations and sustainment phase. Finally, the principle for evaluation is serving overall program success rather than conducting evaluations of IP licensing and MOSA as a compliance measure.
Congress can improve MOSA in DoD programs by assigning the IP Cadre responsibility for developing evaluation criteria and reviewing program IP strategy and MOSA. Additionally, Congress should pass a pilot program directing the review of a small number of programs in each military service. The members of the IP Cadre within each military service could be assigned responsibility for assisting and reviewing the evaluations of these select programs. Once the service’s IP Cadre members finish their review, the service Undersecretary for Acquisition or equivalent could review the evaluation before submission to the OSD Cadre office.
When the IP Cadre receives initial evaluations from the services, it can perform its own review to develop trends, lessons, and observations across programs. Using the IP Cadre in this manner deviates from recent pushes to decentralize program decisions to the military services. The history of DoD acquisition shifted decision-making several times from centralization to decentralization. In the mid-2000s, the Weapon Systems Acquisition Reform Act of 2009 included several requirements for the Office of the Secretary of Defense to take on additional oversight functions of major defense acquisition programs. The current acquisition environment favors delegation of decision authority to lower levels to increase program efficiency. The Fiscal Year 2016 NDAA delegated some of the ACAT Level I decisions back to the military services. The Fiscal Year 2016 NDAA also required major defense acquisition programs to create an acquisition strategy. The IP Cadre’s centralized for evaluating acquisition IP strategies is a sensible consolidation of the oversight of IP acquisition because IP is so fundamental to creating cutting-edge capabilities for DoD. Using the federated approach, the IP Cadre establishes the evaluation criteria and conducts reviews. If focused on improved performance rather than compliance, these reviews will enhance the program’s IP licensing and MOSA initiatives.
Implementing MOSA is not just a technological and business imperative. MOSA is a national security priority. DoD can seize opportunities to implement MOSA in modernizing the force. Failure to use MOSA effectively will harm U.S. national security. Challenges to using MOSA include business incentives and the legal issues discussed in this article. One of the most significant issues is the lack of evaluation criteria for a program’s effectiveness. The lack of criteria coupled with the lack of reviews limits DoD’s understanding of the programs in need assistance. To remedy this complication, Congress should amend MOSA legislation to require DoD’s IP Cadre to craft evaluation criteria that measure program effectiveness. This path forward in evaluating programs is more about improving performance than about compliance, and the IP Cadre should conduct these reviews with an eye towards improving performance. Congress should also start a pilot program to review a select number of large, medium, and small ACAT programs by the IP Cadre to identify opportunities for assistance. These two reasonable steps will lead to improvement in the programs most in need.
Figure 2: Sample MOSA and IP Evaluation Structure
Figure 3: Sample MOSA and IP Evaluation Structure
To view Figure 2 & 3, please download the accompanying PDF.
