It’s NDAA season on Capital Hill and we should start to see drafts soon.
This is a good time to reflect on what were the most impactful NDAA sections to defense acquisition in recent years. The FY16 NDAA was one of the more notable bills, so we’ll frame the era from FY16 to FY23.
The focus is on impact. Which sections enabled greater speed, agility, and innovation? What bureaucratic impediments were reduced or removed? What moved the needle in acquisition?
In sequential order, the Top 10 are:
Middle Tier of Acquisition
FY16 NDAA Section 804
This one may be the most impactful reform over the last decade, establishing the Middle Tier of Acquisition pathways. This provided the DoD with two new paths to rapidly prototype or rapidly field (produce) capabilities - hacking the traditional defense acquisition policy (5000.02), JCIDS requirements, and oversight bureaucracy.
In an op-ed, we renamed it the Middle Tier of Awesome, as in four years there are over 133 programs using it and many success stories to date (Fighters, Vehicles, Satellites, and weapons). Heck, even the DoD IG said it was effective in rapidly delivering capabilities and shaping the culture. MTA is synonymous with 804.
MTA is arguably the best tool to rapidly deliver capabilities to INDOPACOM within the threat window. Yet there are some in DoD and Congress who wish to sabotage it.
Making OTA Permanent
FY16 NDAA Section 815
“The Director of DARPA, the Secretary of a military department, or any other official designated by the Secretary of Defense may, under the authority of section 2371 of this title, carry out prototype projects that are directly relevant to enhancing the mission effectiveness of military personnel and the supporting platforms, systems, components, or materials proposed to be acquired or developed by the DoD, or to improvement of platforms, systems, components, or materials in use by the armed forces.”
OTAs enable DoD to rapidly work with companies to conduct research, prototypes, and where applicable, production. They provide a more streamlined and flexible agreement on terms businesses are more familiar with. By not requiring use of Federal Acquisition Regulation contracts, that saves significant bureaucratic impediments and enables DoD to tap a wider array of tech companies. Read more about OTAs on the Contracting Cone and the OT Guide.
The FY18 NDAA Subtitle G offered a series of sections expanding OT use.
Delegation of MDAP Milestone Decision Authority
FY16 NDAA Section 825
“The milestone decision authority for a major defense acquisition program reaching Milestone A after October 1, 2016, shall be the service acquisition executive of the military department that is managing the program, unless the Secretary of Defense designates another official.”
Prior to this act, USD(AT&L) was the Milestone Decision Authority (MDA) for roughly 66% of MDAPs (and also MAIS - the IT peers before they were removed). This delegated all but a handful of MDAPs to the SAEs, who in turn delegated lower level ACAT I and II programs to their Program Executive Officers. This had a huge impact in reinforcing the Service responsibility to deliver programs and reduced some OSD oversight.
Since enactment, other OSD and Joint Staff organizations continue to use direct or indirect authorities to continue to provide oversight of hundreds of programs albeit within their functional authorities. Given the amount of time it takes for many layers of staff to keep attuned to program status and conduct pre-briefs of all major reviews, this saved programs and OSD staff thousands of hours annually.
There still needs to be a frank discussion on revisiting the role of OSD. OSD should not be in the business of program oversight, yet many still haven’t let go of the reins. OSD requires sufficient insight into major programs from an enterprise portfolio management level as well as to shape department policies, guidance, and strategies.
Buy Commercial
FY16 NDAA Section 851
FY17 NDAA Sections 871-880
FY22 NDAA Section 803
These sections reinforced the statutory preference for commercial solutions - buy before build. It covered a series of reforms that collectively reduce the burdens to acquire commercial items. It enabled companies, particularly non-traditional defense companies to sell to DoD without extensive cost and pricing data and save DoD from determining reasonableness.
Empowered contracting officers to exempt commercial items from submitting certified cost and pricing data based on prior determination by others in DoD.
This addressed market research, value analysis, clarification of requirements, commercial standards, for commercial item determination.
Prohibited contracting for key services that are not commercial services unless determined in writing that no commercial services are suitable.
Treated services provided by nontraditional contractors as commercial items.
Provided DOD with permanent authority to use Commercial Solutions Opening, which was successfully piloted by DIU. CSOs enable rapid selection of innovative commercial solutions, streamlines procedures for commercial technologies to deliver capabilities quickly, and shortens evaluation timelines to significantly reduce procurement lead times.
Modular Open Systems Approach (MOSA)
FY17 NDAA Section 805
Requires all major defense acquisition programs (MDAPs) initiated after January 1, 2019, to be designed and developed with a modular open system approach (MOSA), to the maximum extent practicable.
Followed up by FY21 NDAA Section 804: Implementation of Modular Open Systems Approaches
While MOSA is the default approach per the law of the land, many programs continue to struggle with closed architectures for a variety of reasons, to include vendor business model incentives. This statute is important to put pressure on program offices and decision authorities to pivot to an open systems approach.
Repeal of Major Automated Information System (MAIS)
FY17 NDAA Section 846
As someone who was actively involved in MAIS programs, this one brought me joy.
DODI 5000.02 years ago defined MAIS as automated information systems (read IT) that cost more than $40M in any FY, $165M for design, development, and deployment, or $520M for all expenditures across all increments including O&M. This put MAIS programs on par with MDAPs for the level of oversight, documents, and reviews with MAIS thresholds less than a third of MDAPs. Spend $45M in a year on IT, you could have MDAP level pain. USD(AT&L) was MDA for roughly 2/3rds of MAIS programs.
Congress years earlier, to impose statutory requirements for MAIS, codified the policy language into statute, which further solidified MAIS. Finally in FY17, they removed it from statute and DoD subsequently removed from policy. IT and software programs could be more effectively managed with greater speed and agility with lower level oversight.
Breakup of AT&L
FY17 NDAA Section 901
The breakup of OSD(AT&L) into USD(A&S) and USD(R&E) was a seismic shift in the Pentagon. The vast AT&L enterprise was broken into organizations focused on acquisition and sustainment; and research and engineering. Each of these organizations still have a wide spectrum of responsibilities which are better managed by Undersecretaries with the right vision and expertise.
In March 2019, I published a short paper After the Divorce to frame what each organization should do and revisit the mindset of OSD roles and responsibilities.
While the primary focus in the last era was on controlling costs, the focus in this new era is on speed, agility, and innovation.
Increase in Thresholds
FY17 NDAA Section 801 Rapid Acquisition Authority
FY18 NDAA Section 805 Simplified Acquisition Threshold
FY19 NDAA Section 821 Micro-purchase
For a variety of low dollar thresholds where the focus is “just buy it”, the thresholds were raised to enable acquisition professionals to accelerate and simplify purchases.
Digitize DoD Acquisition Policies, Guidance, and Processes
FY18 NDAA Section 868
This one drove the development of the Adaptive Acquisition Framework and website.
Congress required DoD to develop prototypes to digitize defense acquisition regulations, policies, and guidance and to develop a digital decision support tool that facilitates the ability of users to tailor programs in accordance with existing laws, regulations, and guidance. It required an online, interactive digital format to create a dynamic, integrated, and authoritative knowledge environment for purposes of assisting program managers and the acquisition workforce of the DoD to navigate the complex lifecycle for each major type of acquisition program or activity of the Department.
This has been a passion of mine for over 20 years. In developing earlier prototypes to demonstrate to DoD and Congress the art of the possible, we then created the AAF pathways along with a novel website that integrated statute, policies, guidance, and resources for the workforce to navigate them.
Software Acquisition Pathway
FY20 NDAA Section 800
The DoD runs on software.
Congress put in statute that programs using the Software Acquisition Pathway are
Exempt from MDAP-level bureaucracy
Exempt from JCIDS unless a new process was agreed upon
Requirements, acquisition, and budget processes should be streamlined, integrated, and tailored to the unique aspects of modern software development.
Required timely delivery of software capabilities within a year of first obligating funds and annually thereafter.
Given software is central to every major mission, system, and emerging technology, DoD must effectively acquire and rapidly deliver software capabilities.
Which of these did you see as having a major impact on acquisition?
Are there others not on this list that you believe warrant mentioning?
Will the FY24 NDAA include some Hall of Fame sections to make this list?
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