written by Richard L. Dunn
The Apollo moon landing on 20 July 1969 holds a special place in my heart. My father worked on the Apollo program as a contractor employee. He worked for Apollo contractor ILC Industries best known for their commercial product the ‘cross your heart bra.’ International Latex had other skills and capabilities and was a primary contractor on the Apollo space suit design and production. Dad worked for ILC in Houston and later in Florida. I had been interested in space in my youth even before Sputnik in October 1957. My parent’s location in Houston led me, after my first year in law school, to apply for and get a job as a summer intern in the Apollo Procurement Office. Among other things, my experience there led me to wonder why the government contracts I encountered were so different from the contracts I had just studied for two semesters in law school. This was two years before the moon landing. The other thing that makes the moon landing so special for me is that it occurred the day after my wedding.
This first encounter with government contracts, including the largest and most important of the era, had a lasting effect on me. Why were they so different than common law or commercial contracts? After more than half a century of pursuing that question, I won’t belabor that in this article. The Packard Commission, Defense Science Board and many other expert bodies have analyzed the dysfunctionality of the traditional procurement system when it comes to innovative, high tech programs.
I learned things at the Apollo Procurement Office. One lesson, which seemed strange to me even then, was that most of the procurement professionals there viewed high-tech projects like Apollo as just another procurement program. Research and development was just a version of a service contract. Lessons applicable to purchasing services, construction or supplies were equally applicable to a program like Apollo. I later found these same views reflected in procurement courses sponsored by the Air Force and Army when I was on active duty with the Air Force.
My career took me through a short stint in legal aid, active duty in the Air Force, private practice in a D.C. law firm, and in 1980 to the Office of General Counsel at the National Aeronautics and Space Administration (NASA). My job was in the general law section with primary practice responsibility being personnel, labor law, and equal opportunity programs. As a former military lawyer, who followed the chain of command, I was surprised to find myself receiving special assignments from the General Counsel and Deputy General Counsel rather than through my immediate supervisor.
Researching history is a big part of my life, I studied the history of NASA with special interest in its organic statute, the National Aeronautics and Space Act (Space Act). I discovered that the world’s first active communications satellite Telstar 1 was entirely privately funded, developed and managed by a private firm. NASA’s involvement was providing launch services, since it had a domestic monopoly at the time. This was eye opening. NASA provided the launch and was paid for it. The technical report on Telstar 1 in the NASA library looked exactly like a technical report that would be a deliverable in a funded procurement contract. A major scientific and technological advance in an area dominated by government took place with no government funding! However, government – private sector collaboration and coordination was essential.
This arrangement was possible because the drafter of the Space Act, Paul Dembling, had foreseen the need for this kind of collaboration. In the litany of contractual arrangements that the Space Act conferred upon NASA were such “other transactions” as might be necessarily in performing its work. I was appointed counsel to the space commercialization task force. I negotiated the Space Act other transactions agreement that resulted in the first private space launch from Matagorda Island Texas in 1982. I remained involved in innovative uses of Space Act agreements throughout my tenure at NASA.
When I was appointed the first General Counsel of the Defense Advanced Research Projects Agency (DARPA) in 1987, I brought my interest in non-procurement agreements with me. I found officials in DOD’s legal and procurement offices completely uninterested in obtaining new legal authority to conduct research and development. However, an early task handed me was to respond to a Congressional requirement to provide a report on a potential alternative management system for DARPA. The primary concern was compensation for program managers. I inserted a discussion of the need for flexible agreements authority. The report was approved and sent to Congress. I considered it a green light to interact with members of Congress on the subject.
The “rest of the story” involves personalities like retired General Bernard Schriever, father of the Air Force ICBM and space programs, Paul Barran inventor of packet switching and others. Suffice to say, in the fall of 1989 DOD other transactions authority was enacted and in early 1990 the first agreement was signed.
Events like the moon landing, heroes like Bennie Schriever, and many good people in government and industry are what have kept me going in the quest to inject innovation and rationality into government acquisition. People who know me well, know I’d rather be following another one of my passions. I’m looking to the current generation to pick up the mantel and take us forward. Maybe even upward and back to moon and on to Mars.
Join me at Other Transactions: Acquisition Intelligence July 24-25, 2019 in Rosslyn VA