Just as the law is increasingly recognized as an important instrument of national power, this article argues that government contracts law should also be recognized as such an instrument. Broadly construed, acquisition law encompasses a host of subjects that bear on national security. This discussion is divided into inward- and outward-facing components. Its inward-facing components are instrumental in nature because they serve as handmaidens to the military and other instruments of national power. Its outward-facing components are intrinsic in nature because various foreign policy tools, including foreign military sales (FMS), are governed by procurement law, making this component an instrument of national power in its own right. This article uses an example from Latin America to illustrate how U.S. laws that authorize, manage, and enforce the FMS program are used to give practical effect to standards of international law and thus to achieve national strategic objectives. It concludes by suggesting that the judge advocates in the Department of the Air Force who specialize in procurement law are perhaps undervalued.
“[A]cquisition reform . . . is a national security issue, and the failure to innovate inside the Pentagon will have real life-and-death national security implications.”
Bret Boyd
Instruments of national power are the means by which the government conducts foreign policy. Historically, in both the literature and national security doctrine, scholars and practitioners have recognized four such instruments known as “DIME”: diplomacy, information, economics, and military. Consistent with Joint Doctrine Note 1-18, this article assumes that there is a fifth instrument of national power—the law—that can operate either independently or in concert with the other instruments. Scholars and practitioners have coined a new acronym in light of this recognition: “MIDFIELD.”
Those in the military and national affairs increasingly recognize the law as an instrument of national power. Since then-Colonel Charles Dunlap’s seminal essay on the subject two decades ago, which popularized the term “lawfare,” the nexus between foreign affairs, military operations, and the law has become an academic subject unto itself. Few would dispute that, in a world that is ever more legalistic and globalized, the law affects matters both public and private at home and abroad like never before. This article takes this proposition a step further, making a more controversial claim.
In 2018, the Air Force Judge Advocate Generals (JAG) Corps leadership released an updated “Flight Plan,” which included a graphic depicting how the Corps’s mission fits within national security doctrine. The accompanying explanatory text defines the Corps’s legal domains: military justice, operations and international law, and civil law. The first two are instruments of national power in a straightforward way. As former Secretary of Defense James Mattis once observed, military justice is essential to good order and discipline. It is a force multiplier and increases the lethality of the military. Operations and international law are even more clearly instruments because they provide commanders with the left and right boundaries when executing the mission. Less obvious is civil law’s function as an instrument of national power. This article argues, perhaps more controversially, that one area of civil law is particularly important: acquisition law. It maintains that the lawyers who specialize therein are an essential instrument of national power, no less than in the other domains in which judge advocates work.
This article analyzes the inward- and outward-facing aspects of procurement law to illustrate how expertise in this field may enable other instruments of national power and serve as an instrument in and of itself. Acquistion law is an important tool across the armed forces, but, in the Air Force’s technology-centric modes of warfare, it is truly indispensable. Enabling airmen and guardians to bring the fight to air, space, and cyberspace depends on sophisticated machines of war whose purchase is facilitated by lawyers. Stripped of those machines, the Air Force would bring little to the fight: hence the centrality of acquisition law. The penultimate section suggests that the cultivation of this expertise is perhaps underemphasized.
Procurement law is both an instrumental and intrinsic instrument of U.S. power. It is instrumental in that it is a force enabler. Acquisitions counsel help their clients navigate the procurement system; to avoid, manage, and prepare for litigation; to fully embrace competition; and, when necessary, to pursue the necessary exceptions to policy, class deviations, or reforms. Thus, the practice of procurement law helps to ensure that warfighters have what they need while at the same time reducing the burden on taxpayers. It thereby enables and safeguards the military and economic instruments of national power, among others.
In addition to procurement law being an inward-facing instrument enabling other instruments, its outward-facing side is also an instrument of national power in its own right. Broadly defined, procurement law affects myriad aspects of international relations and commerce including export controls, national security restrictions on foreign imports, and the delivery of non-military foreign aid, among other subjects. Spending half of a trillion dollars every year, the U.S. federal government is the world’s single largest buyer. Despite domestic criticism, our procurement system is admired abroad and has been emulated in various ways. “Exporting” our legal system in this fashion is one of the ways that procurement law functions as an outward facing instrument of national power. Though there are many other examples, this article uses the role of procurement law in foreign military sales (FMS) to demonstrate this proposition. Rather than merely enabling, FMS exemplifies one way in which government contracts law functions as an intrinsic instrument of national power. Therefore, procurement law itself is such an instrument, not merely a handmaiden to other instruments.
Together, these inward- and outward-facing elements make procurement law an important instrument of national power. This distinction between inward- and outward-facing elements is drawn to underscore how acquisition law may operate either independently or in concert with other instruments of national power. Inward-facing elements emphasize that this legal instrument of power supports and sustains the military instrument of national power. The outward-facing example of the FMS program not only shows that this area of law may operate as an instrument of power independently but also how acquisition law may operate in concert with other instruments. Clearly, when the U.S. government facilitates the sale of arms, it also implicates the diplomatic and economic instruments of power. Acquisition law, then, is an instrument of national power and as such is routinely interactive and collaborative with other instruments.
For a military branch that depends on technology like no other, the Air Force must navigate the acquisition process to buy, build, and innovate to accomplish its mission: to fly, fight, and win. The Air Force exemplifies how the United States employs the law “to achieve strategic effects within her shores,” specifically to build and maintain the fleet. To this end, specialized attorneys are essential in four respects. First, they help the Air Force prepare for litigation and, when necessary, to defend its interests. Second, they help the wider acquisition workforce to navigate the procurement system. Third, they are an important bulwark to ensure that the system functions as it was meant to: competitively. Fourth, they help to reform the system when necessary.
The Air Force Federal Acquisition Regulation Supplement (AFFARS) mandates a legal review at every stage of the procurement process. Under some circumstances, a review is required only above a threshold value. In others, a review is required regardless of the contract value. In practice, this mandate means that the majority of actions require a legal review. Without the assistance of specialized legal counsel, the procurement system would not function as it should.
Even when a legal review is not required by the AFFARS, the help of specialized counsel is still advisable for several reasons. First, because procurement is highly legalistic, opportunities for missteps abound. Without the benefit of counsel, officials risk making mistakes that may result in suboptimal purchases, unnecessary delays, or costly litigation. Second, because public contracts diverge from private contracts in several important ways, even lawyers without specialized contracts training risk making serious mistakes. Third, apart from avoiding mistakes, program counsel can help officials cut through the red tape. Otherwise, overemphasis on compliance may come at the expense of sensible business decisions. Perhaps the greatest service counsel can render is to help clients to understand and to make full use of the flexibility contained in the FAR. Such familiarity with the FAR does not, of course, require a law degree. Yet legal training no doubt helps in this highly formal and legalistic field.
Because legal reviews are required at all phases of acquisitions, local acquisition counsel are ideally positioned to help officials avoid, prepare for, and litigate protests and disputes. Local counsel also assist with preparing the agency report for bid protests and often do the heavy lifting for protests before the Government Accountability Office (GAO) and the Court of Federal Claims (COFC). And local counsel will likewise help in the preparation of dispute litigation before the Armed Services Board of Contract Appeals (ASBCA) and COFC. Because the federal procurement system is adversarial by design, where “private attorneys-general” are supposed to further the public interest by protesting questionable awards, lawyers are indispensable subject-matter experts for such litigation.
Avoiding litigation is certainly important. However, there is a tendency to fear litigation to an unhealthy degree. Such anxiety may lead acquisition personnel to resist change or innovation, discourage the use of practices not specifically sanctioned, or other manifestations of overdeterrence. Often, the best advice counsel can give is to stop worrying about protests and to focus on exercising good business judgment. Lower-value procurements are rarely protested and thus should not worry the contracting officer. Higher-value contracts in excess of $100 million will be protested no matter what, and thus there is no use in worrying about creating a “protest proof” procurement. In either case, officials would do best to concentrate on making sound procurement decisions rather than on avoiding protests.
In a landmark opinion decided eight decades ago, the Tenth Circuit held that the purpose of federal procurement statutes was “to prevent unjust favoritism, or collusion or fraud . . . and thus secure for the Government the benefits which arise from competition.” Competition has long been a hallmark of the federal procurement system. Yet this purpose can be thwarted if government officials become too single-minded about the avoidance of litigation or of winning protests or disputes at any cost. With a better understanding of the rationale for so much litigation in the federal procurement system, program counsel may serve an important role: they can be the watchmen of competition.
Acquisition attorneys are litigation specialists whose training helps procurement officials when protests and disputes arise, with the goal of avoiding them in the first place. Relative to the nonlawyers working on a source selection, the lawyers are the litigation experts. They are, however, more than that. Such counsel also help officials to develop a proper perspective on the value of litigation as a guarantor of competition. In this manner, the acquisition lawyer seeks to further not only the Air Force’s immediate procurement needs but also to underwrite the integrity of the procurement system as a whole. This goal is not simply a matter of interest to the regulator, the taxpayer, or the morally punctilious; it is also critically important because a competitive system is one that suppliers can trust. If public business cannot be done on the basis of trust and voluntary exchanges, the alternative is coercion, which should be avoided.
Buying next-generation innovation in the fields that the Air Force and Department of Defense (DoD) are pursuing will require not only maintaining relationships with existing contractors in the defense industry, but also expanding the industrial base to new businesses. Further, in what the Obama administration called the third-offset strategy, the Pentagon seeks to acquire the next generation of military technology in fields where civilian, non-defense firms currently dominate. According to the National Defense Strategy, these technologies include “advanced computing, ‘big data’ analytics, artificial intelligence, autonomy, robotics, directed energy, hypersonics, and biotechnology.” If the Air Force is to attract such firms, it must be counted as a reliable partner that awards contracts fairly, deals justly when disputes arise, and does not act solely on the basis of litigation avoidance. Otherwise, the spritely firms mostly likely to develop innovative solutions will take their business elsewhere. If the perception is that the costs of doing business with the Air Force outweigh the benefits, the rational operator will choose another business partner. Protests entail unwanted delays, but the importance of underwriting competition is no small matter. Acquisition counsel may thereby encourage their clients to take an enterprise-level perspective—however painful the litigation may seem to those on the front lines.
Opinions vary considerably as to whether or to what extent reform is necessary. Some consider it an urgent necessity. Others maintain that the system as presently constituted reflects an ideal alignment not only with constitutional doctrine but also with our political and cultural priorities. Still others hold that the problem lies not with the arrangement of the acquisition system but in procurement officials’ ignorance of what the regulations actually say. Whatever the truth may be, though, program counsel would surely have a key role in any such reform efforts.
Perhaps no other group is better situated to identify problems with federal procurement law than the DoD acquisition lawyers whose struggles with the FAR are up-close, personal, and daily. Program counsel, therefore, have a crucial role to play in discussions about reforms. Sometimes this assistance will entail helping clients reach their goal without amending the regulations. Other times, legal counsel may entail advocating for reforms to make the system work better while still preserving transparency, integrity, and fairness. Either way, specialized counsel’s role is crucial to ensuring that the procurement system continues working properly.
The FMS program is an illustrative example of the outward-facing side of U.S. federal procurement law. The Air Force has an outsized role as one of the two largest purveyors of FMS contracts.
The FMS program is a form of security assistance whereby the United States sells defense goods and services to friendly countries, with the U.S. government acting as intermediary. Its origin lay in the Second World War when the United States supported Britain with the Lend-Lease program. Then, for the first three decades of the Cold War, the United States supported allies with precursors to what is now called FMS. Congress formalized these arrangements and established the modern FMS program in the 1970s. Since then, FMS has become a key policy tool for advancing U.S. security interests abroad and is critical to our allies’ strategic planning and self-defense capabilities.
One could quibble about whether FMS would be more accurately characterized as an activity that fits under the military rather than the legal instrument of national power. However, even if FMS is primarily a military function, it is authorized, managed, and enforced by law. Lawyers—not only from the DoD, but also the State and Commerce Departments—are intimately involved throughout the process. FMS is not a purely legal instrument, but it is unquestionably performed under the aegis of legal authority and is sanctioned by and executed based on the advice of the security cooperation legal experts. What follows is not so much a description of the process, which can be had elsewhere, so much as it is an explanation of why FMS is aptly characterized as an instrument of national power.
The U.S. government is the world’s leading arms exporter. Apart from the fact that some weapons are only available through FMS, purchasing U.S. arms through FMS is favored for at least three reasons. First, America builds the world’s premiere weapons. Buyers prefer the dependability, prestige, and deterrence that come with buying the best. Second, foreign buyers want to “entangle” themselves with the United States. Such entanglements may yield collateral benefits apart from buying the best arms at the best price, including deeper and longer-term relationship with a powerful ally. The third reason is that the FMS program itself is an incentive to buy American arms: ninety percent of U.S. arms exports are concluded through FMS. One key reason is that FMS also reduces compliance costs. FMS also allows buyers to avoid the uncertainties and transaction costs often associated with this market. Additionally, buying through FMS means operating within the United States’ reliable procurement system that is highly regarded abroad. In some cases, buyers not only like U.S. arms, they admire the U.S. procurement system and its legal system more broadly. Buying from the United States thus entails the added benefit of using a trusted and efficient system. Procurement law is therefore a key ingredient to what may otherwise seem like a purely military instrument of national power.
For many countries, the importance of continued U.S. security cooperation is existential. Being their provider of choice affords the United States significant diplomatic leverage. Considerable space could be devoted to discussing examples from Saudi Arabia, Taiwan, or Israel, and how defense industry business relationships through FMS affect diplomatic relationships with these nations. Instead, an illustration from Latin America is used. Many countries in the region are stuck in protracted struggles with narcotraffickers. But for their interest in continued U.S. security cooperation support, and FMS in particular, these countries would adopt policies on the interdiction of civilian aircraft that would violate the Chicago Convention, as noted below, or at least transgress America’s views on the meaning of that treaty.
Signatories of the International Convention on Civil Aviation, or Chicago Convention, have since 1944 prohibited armed attacks on civilian aircraft. With two notable exceptions, this prohibition has generally been observed. Some countries that usually follow the prohibition also hold that civilian aircraft may be forced down for purposes of law enforcement; many of these are countries in Latin America that are struggling with drug trafficking. The United States long supported such law enforcement activities. However, U.S. policy changed in 2001 after Peru’s tragic interdiction of American missionaries mistakenly thought to be drug traffickers. U.S. support for shootdown policies was suspended, and ultimately the law was changed to require an annual presidential determination of eligibility for countries with shootdown policies in order to receive continued assistance from the U.S. government. Such a determination was eventually made for Colombia, but several other regional partners still await U.S. approval of their aerial interdiction policies. This has had second-order effects for FMS, which requires strict compliance with the contract terms, which may include seemingly unrelated U.S. policy. Since the United States now requires a presidential determination for partners to have laws authorizing the shoot-down of civilian aircraft, failure to comply entails suspension from related FMS contracts, including purchasing spare parts. Some countries in Latin America have fallen in line, while others vociferously object that ni un tornillo can be bought without presidential approval of their aerial interdiction programs. Were it not for FMS acting as a sword of Damocles hanging over their heads, Latin American partners would be less interested in the niceties of the United States’ views on the Chicago Convention. Procurement law lies at the heart of disputes with several key partners in the region and could affect the shape of those relationships in the future, especially with near-peer competitors vying for influence. This illustrates the importance of procurement law as an instrument of national power and how it can be used to greater effect in combination with other instruments.
This section does not attempt a comprehensive review of all the military branches. It concentrates instead on the active-duty judge advocates who serve the airmen and guardians of the Department of the Air Force. Further, this section addresses only judge advocates, not the many skilled (and often far more experienced) civilian attorneys who constitute the majority of the procurement law support, working either for the Air Force JAG Corps or the Office of General Counsel. This composition of the workforce (some active duty, some civilian) begs the question—if acquisition law is so important, why not civilianize it entirely (as the Navy has)? This would, so the thinking goes, ensure better subject-matter expertise and continuity.
This article does not attempt to settle what the right mix of civilian and military attorneys may be, but it does posit that having attorneys with active-duty experience is valuable to the Air Force. Not always, but often, Air Force civilian attorneys started their careers in the JAG Corps and first gained exposure to government contracts while on active duty. Many would not have discovered government contracts but for this experience. Active-duty experience not only affords a broader understanding of the mission, but also greater credibility with clients. Thus, a key ingredient to a seasoned and experienced civilian corps of contracts experts is their military service, most often in the JAG Corps. Further, for the same reasons that members of the armed forces prefer a justice system administered by uniformed judges, prosecutors, and defenders, having uniformed procurement lawyers in the mix also serves an important function. Last, necessity sometimes dictates that lawyers be stationed closer to the warfighter. Civilians may serve in such roles, but they do so purely on a volunteer basis. This consideration alone makes active-duty procurement experts, who can be ordered into hostile combat zones, indispensable.
Yet as a specialty for judge advocates, procurement law is sometimes given short shrift. The Air Force leaders, civilian and military alike, have long recognized that procurement is mission critical; but the JAG Corps, it seems, has until recently considered it a tertiary priority. The Air Force Judge Advocate General’s School teaches new entrants at the Judge Advocate Staff Officer Course, its introductory course, that military justice takes priority. “Military justice is job one,” is the refrain. This lesson is reinforced throughout one’s career progression. The best lawyers are assigned to litigation billets. Talented justice practitioners are rewarded. It would seem the opposite is true for those specializing in government contracts law. Few would think that developing this expertise would be a fast track for career advancement. Shrewd mentors often forewarn promising young judge advocates who are wandering down this career cul-de-sac unawares.
Despite insufficient emphasis on the value of program counsel from the JAG Corps, the larger Air Force and the market recognize the value of legal expertise in government contracts. Consider the following example. The Office of the Assistant Secretary of the Air Force for Acquisition, Technology and Logistics (SAF/AQ) has for many years funded the full-time studies of judge advocates earning Master of Laws (L.L.M.) degrees in government procurement law. This investment is considerable and is a testimony to the interest that acquisition specialists have in cultivating acquisition law expertise. Consider also that it is not uncommon in Air Force Materiel Command for program offices to fund additional procurement attorney billets to ensure that ample capacity is available for legal support. A review of Air Force leadership’s priorities proves that acquisition is front and center. This leadership does not ask for the development of a better system for justice or discipline; nor do they seek improved guidance on the law of armed conflict. Instead, their emphasis is on upgrading the fleet, which is an acquisition function.
Regarding the value the market places on procurement lawyers, one need only observe how judge advocates with such training vote with their feet. They have more opportunities than most of their peers, whether elsewhere in government or in private practice. Such alternatives can be alluring. Many of our best procurement lawyers separate or else immediately retire once they are eligible. The value of this expertise is not lost on the market.
This is an unfortunate state of affairs. Although America’s procurement workforce is among the best in the word, commentators have nonetheless complained about the U.S. acquisition workforce’s inadequate training. And, often, training is also a problem for the lawyers advising them; no sooner are they trained than they move on. If the Air Force JAG Corps were serious about retaining talent, it would use one or more of the familiar retention tools: special or incentive pay could be offered; a separate promotion track could be created, just as the Navy JAG Corps has done for its litigators; and contract specialists could be allowed to homestead rather than being reassigned every two to three years. Considering that the Air Force’s combined budget of $174 billion, investing in efforts to recruit, train, and retain top-tier legal talent would cost little when compared with potential savings to the taxpayer. The status quo is pennywise but pound foolish.
Several reasons that the Corps is more interested in military justice than in procurement law come to mind. To begin, whereas the former is a legal function staffed mainly by lawyers, in procurement, lawyers are but one part of a larger team. The JAG Corps does not “own” procurement in the same sense that it “owns” military justice. Perhaps the Corps’s emphasis on military justice arises not from our clients’ wishes but in part from what we as lawyers find most interesting; few went to law school to become procurement lawyers. Likewise, there is something flashier about military justice litigation. No filmmaker will ever cast Tom Cruise in the procurement-law version of A Few Good Men. A common quip in the Corps is that if an attorney’s work is outside of the courtroom then she is not truly practicing law. This misplaced preference for litigation over transactional work is not unique to the military, but it is a common criticism of pedagogy in law schools. These comments serve not to denigrate the proven value of military justice litigation or of military justice generally, only to encourage the recognition of acquisition law as a domain of comparable value to the mission.
Similar observations could be made about the third domain under the JAG Corps Flight Plan, operations and international law. Just as some law students are drawn to the profession of arms by the prospect of immediate criminal litigation experience, others are attracted by the prospect of close contact with the mission as operational law advisors. Contracts law lacks a corresponding immediacy or proximity to the mission: no Hollywood mogul would finance an Eye in the Sky spinoff whose focus is government procurement. Thorny contracts issues do not set the heart racing, much less turn a profit at the box office.
Another reason that the JAG Corps may not favor focusing on procurement is that it seeks to train generalists who can one day serve as well-rounded leaders and will train the next generation of judges advocates and paralegals. This undeniably serves an important purpose. Yet perhaps these goals are not so antagonistic as supposed. Arguably, the career path for developing a program counsel to advise Program Executive Officers (PEOs) is no less rigorous than that required for skillfully advising commanders on military justice matters or other base-level type issues; advising PEOs requires a similar level of competence, savvy, and officership. Program counsel will not fail to develop the necessary leadership skills. Perhaps the Corps could build a cadre of acquisition specialists who at the same time become the leaders who will train the next generation. The two are not mutually exclusive.
There is, perhaps, a glimmer of hope. Although the Flight Plan does not separately list acquisition alongside military justice and international and operational law, if one reads the material defining the civil law domain, it seems to be talking mostly about acquisition law. “Civil law disciplines,” it states, “are interwoven with the acquisition, operation, protection, and preservation of the force and its people, funds, weapon systems, materiel, and installations.” Civil law is in one sense being used here as a catchall for domains that are not encompassed by the other two. Yet the definition given also suggests that “civil law” is primarily about fiscal and acquisition law. This document seems to betoken a new understanding about the primacy of acquisitions and, thus, to correct the Corps’s longstanding neglect of this field in favor of fields of practice that active duty attorneys may find more compelling. Our clients recognize the primacy of acquisitions and the necessity of legal expertise therein. Perhaps a rebalancing of the Corps’s priorities is therefore overdue.
Apart from a few career fields whose direct contribution to front-line combat operations is recognized, other branches of the military sometimes view the Air Force as a less legitimate part of the military. Such criticism is unfair. But amidst the mockery, there is a kernel of truth. Just as sailors without ships would not a Navy make, no other service depends on its machines of war so much as the Department of the Air Force. The Air Force’s machines are prerequisites for the domains it fights in, and that fact should be recognized and embraced. It has ramifications for how the Air Force does business, and, specifically to this article, for where the most valuable billable hours are for judge advocates and the types of expertise that ought to be cultivated. In short, the Corps could better tailor the legal services that it offers to the Air Force’s unique mission, which, arguably, has more in common with a technology company than with infantry warriors.
Law is indeed an instrument of national power, and the Air Force JAG Corps embodies one part of that instrument in the larger foreign policy apparatus. But the JAG Corps could perhaps better align with our client’s greatest need. It has long provided sound advice, counsel, and litigation support for military justice and international and operational law, and these are surely critical endeavors. Yet perhaps the JAG Corps could do better at cultivating and retaining expertise in government contracts—especially given that the Air Force’s overwhelming emphasis on high-tech acquisitions is our central distinction from our sister services. The apparent realignment in the JAG Corps Flight Plan is encouraging, but the Corps’s orientation could still do more to better sync with our service’s distinctive mission.
While government contracts law will never be as alluring as military justice, that does not make it less important. Procurement law is not at the tip of the spear, but without this enabling instrument of national power there would be no spear in the first place. Likewise, on its outward-facing side, procurement law is a key foreign policy tool and an instrument of national power in its own right, which is of particular interest given that Air Force oversees an FMS portfolio of $640 billion. Procurement is part of the Department of the Air Force’s DNA; it would behoove the Corps to better leverage the legal aspect of this instrument of national power.
