Quick Reaction Contracting for Medical Emergencies

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Does DoD’s medical community know that there is a quick reaction way to experiment, test, develop or evaluate and get into use new approaches needed in an emergency? Since the medical community is served by the same contracting and legal staff as the rest of DoD, I doubt it. 

The bureaucracy falters at anything that has not been done many times before.  Use section 2373? Why, they will ask. Their answers are: (1) Look for an SBIR project to fund at phase II or maybe phase III; (2) Send money to the Medical Technology Enterprise Consortium (MTEC); or, just do business as usual. 

DoD’s legal and contracting personnel have let the military and the country down by their commitment to the “costs too much, takes too long” system, as the only way to do business. We are talking about the business of saving lives, defending a nation and doing it in ways that makes sense to the large number potential partners, not just to a closed system for whom the process is more important than the goal.  The process should not be more important than the achievement of goals, the end-user’s needs or other potential benefits. Yet, a paramount concern seems to be protecting the government. From what? I know what the defenders of the system are likely say, but the rules and lore usually do not benefit anyone outside of the system, most profoundly the warfighter and citizen. Leadership from the Secretary of Defense and the Chairman of the Joint Chiefs of Staff is needed! This is too important to leave to the acquisition bureaucracy; expect and demand more!   

There are alternative approaches available. In the Coronavirus crisis consider:

  1. The Secretary of Defense and the Secretaries of the military departments may each buy…medical…supplies, including parts and accessories, and designs thereof…necessary for experimental and test purposes…
  2. Purchases under this section may be made inside or outside the United States and by contract or otherwise. Chapter 137 [Armed Services Procurement Act – FAR] of this title applies only when such purchases are made in quantities greater than necessary for experimentation, technical evaluation, assessment of operational utility, or safety or to provide a residual operational capability.

This authority quoted above which is codified as section 2373 of title 10 is typically ignored by contracting officers and lawyers in DoD who prefer the familiar system of contracting on which their careers have been built.

Consider the implications: Competition not required but can be implemented in ways that make sense; arcane Federal Acquisition Regulation (FAR) rules which are unknown or anathema to innovative companies large or small do not apply; simple commercial contracts or orders can be executed; and, quantities can be enough to maintain a residual operational capability.

Why aren’t DoD’s leaders expecting that this authority be put into use? The primary concern of R&D is the quest for knowledge, this authority is a good place to jump start learning what can work and deploying a solution. Section 2373 is a purposeful authority with many potential benefits, most importantly the search for solutions to critical problems.  Unfortunate as it is, our leaders have listened to their acquisition and legal staffs who may not know, may have contempt for, or believe innovative contracting using 2373 is merely a niche authority. Sections 2371 and 2371b of title 10, other transactions, are related underutilized authorities, potentially powerful approaches in emergency situations. Acquisition professionals are unprepared to use them effectively and as intended. The workforce is under-trained and has not been empowered to understand and execute critical authorities and business practices, especially those specifically designed to solve-problems, prototype and expedite contracting to promote our national security. Congress has directed the DoD to develop a “preference” for using these authorities; contracting personnel seem to prefer processing exceptions, waivers or deviations from FAR.  These solutions are typically incremental, half measures and remain within the framework of the same overly regulated, risk averse, ponderous system. 2373 and other related authorities provide the opportunity for an alternative. We can continue to bang our heads against the wall expecting different results or do what has been directed and is needed.  

This is a matter of national security.  We should already be prepared for the potentially catastrophic scenario we now face.  The arcane inherently slow acquisition system tied to the FAR is a core problem. Congress has directed DoD leadership to develop a “preference” for using the innovative acquisition authorities it has provided.  In a time of crisis true leaders rise, make a difference by accepting risks, make tough calls and thoughtful decisions based on the best available knowledge. Are there real leaders in the acquisition community; if so, please stand up!  Senior leaders need to empower action teams of ‘can do’ people, whatever their professional background, to use flexible contracting techniques to get needed action accomplished in a time-frame crisis demands.

 

written by Richard L. Dunn

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