Defense innovation faces hurdles.

• Author: Thomas, Teka
• Position: COMMENTARY

* One of Secretary of Defense Ash Carter's main priorities is to find the right approach to procuring services and software from information technology companies. However, the government's policies today do not encourage constructive partnerships with these nontraditional suppliers that are capable of providing innovative products.

There are two issues the Defense Department must tackle in approaching the "non-defense" business sector. The first being control of the use of technology, and the second being acquiring the right talent at the right time.

There is a small, specialized body of intellectual property law that deals with federal procurement. In lay terms, depending on how much federal funding goes into a product, the government has varying "use rights" for the product and its technical data. If the government pays for all of the development, the government can give it away to multiple companies. Under the best circumstances for an outside contractor, the government can use its technology only for its own purposes.

There is a practical problem however. The "government" is often made up of a lot of embedded service contractors. To an extent, government procurement is a transaction involving other businesses. Thus, contractor employees at a military base could see the secret sauce of a tech company and reverse engineer it for their own company or any other company that lures them away.

They are not yoked to the tech company with stock options, so their interests are not aligned with the firm that created the technology. Procurement with high-growth potential technology firms will require a lot of contract negotiation if these firms are to be made comfortable in selling their wares to Uncle Sam.

When procuring service contracts, in which private employees work directly with the government, the key guiding legal concept is the "inherently governmental function." Public law, executive orders, and the Federal Acquisition Regulations define the types of functions that cannot be contracted out, and must be performed by sworn government personnel. People of different ideologies can argue about the proper scope of government, but all can stipulate that certain roles must be governmental.

Technological advancements, and an ever more complex global society, means that inherently governmental activities will outstrip the capacity of government personnel to regulate and program. Thus, our current conception of inherently governmental activities...