Defense Secretary Pete Hegseth wants the Army to include right to repair provisions in all new and existing contracts in an effort to cut costs and reduce delays caused by relying on original manufacturers for maintenance and support.
In an April 30 memo, Hegseth directed the Army secretary to “identify and propose contract modifications for right to repair provisions where intellectual property constraints limit the Army’s ability to conduct maintenance and access the appropriate maintenance tools, software, and technical data.”
Hegseth said the contracts should ease restrictions while “preserving the intellectual capital of American industry.”
The military services often face contract-imposed restrictions on how they can repair and maintain equipment and weapons, leaving them dependent on original manufacturers to conduct necessary fixes in the field, which is costly and time-consuming.
The Defense Department has long struggled to find the right balance between its need to access companies’ intellectual property and allowing them to retain control over proprietary information. The issue has become even more pressing now that the Pentagon leans more heavily on private industry for innovation.
“In many ways, it is one of the huge issues they have to deal with. There are issues on both sides, because after years in which the industry doesn’t trust the government and vice versa, it’s become a zero-sum game for both sides. And it can’t be that way,” Stan Soloway, president and CEO of Celero Strategies and federal acquisition expert, told Federal News Network.
“They’ve got to have some flexibility. The government does not have the right to freely take and use as they wish, any technical data or intellectual property. But there are cases in which they do need to have access to it, and it needs to be negotiated up front at the beginning, not in the middle of a contract,” he added.
Modifying existing contracts to fix intellectual property issues is not ideal, Soloway said, but the government also has no choice — there are too many existing contracts, some of which may have been created years ago, with flawed IP clauses.
Negotiating those clauses will be a massive undertaking that could take the Defense Department years—and it will require sustained focus over that time before it becomes clear whether the Pentagon is able to achieve its objectives.
It also remains to be seen whether the Army’s acquisition workforce is equipped to negotiate these kinds of provisions effectively.
“It takes more work to make sure that you actually take possession of all of the intellectual property to which you are entitled, and it takes even more work on top of that to go back and renegotiate existing contracts so that you’re entitled to all of the intellectual property you need in order to maintain all your equipment,” Greg Williams, director of the Center for Defense Information at the Project On Government Oversight, told Federal News Network.
Soloway said the Army will need a comprehensive workforce strategy to ensure all employees, including contracting officers, systems engineers, and program managers, are equipped to take on this task.
Williams said the task of ensuring all contracts include right to repair provisions might be better suited for the undersecretary of Defense for acquisition and sustainment, since the office oversees the Defense Contract Management Agency (DCMA), the Defense Contract Audit Agency (DCAA), and the Defense Logistics Agency (DLA). While Hegseth tasks the Army Secretary with implementing the sweeping changes laid out in the document, the memo is addressed to senior Pentagon leadership.
The right to repair provision is part of a broader effort to reform acquisition processes. In the same memo, Hegseth directed the Army secretary to expand the use of other transaction agreements for faster prototyping and fielding of critical technologies, including software and software-defined hardware.
The IP issue, however, is directly linked to the challenges the Pentagon is having with expanding OTAs — intellectual property and technical data rights are some of the major reasons most OTAs have struggled to successfully transition into production.
In addition, Hegseth directed the Army secretary to shift from program-centric funding to capability-based funding across critical portfolios — something that the Army has been pursuing for some time.
“There is nothing radical about it. It just seems like an extension of what they’ve been doing. Looks like they’re trying to accelerate some of the progress where they feel like the progress has been too slow,” Soloway said.
The memo, however, does not include timelines for when Hegseth expects the Army secretary to begin implementing the reforms outlined in the document.
“Without the timelines and without any very specific performance objectives, it’s hard to know how to measure success. And if it’s really going to be transformational, there really needs to be a whole set of metrics both both in terms of time and specific progress. I don’t really find anything in the text objectionable, it’s an extension, mostly of what they’ve been doing but absent any sort of real tough timeline and cost savings targets, it’s hard to see how it’s actually going to accelerate things more all that greatly,” Soloway said.
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