The Sixteenth Gilbert A. Cuneo Lecture in Government Contract Law

• Author: Lieutenant General Paul J. Kern
• Pages: 05

200 MILITARY LAW REVIEW [Vol. 168

THE SIXTEENTH GILBERT A. CUNEO LECTURE IN GOVERNMENT CONTRACT LAW1

LIEUTENANT GENERAL PAUL J. KERN2

I have most often been a consumer of law rather than one who gives advice on its use, although I did start my career with some legal training. There probably aren't too many people left in the Army who will remember that, years ago, second lieutenants used to have "other duties assigned" as either a prosecutor or defense counsel. So it was with me. I did receive a little bit of education in law and found it very interesting to understand whether command influence had a bearing in life or not. I can tell you there were a few lieutenants I knew who prevented some colonels from being promoted. That was an interesting aspect of life back then.

But that is not the type of law I'm here to discuss today. I am here to discuss the wonderful world of procurement law, contract law, and fiscal law. I will begin by discussing the rapid evolution of procurement law. This discussion will be a backdrop for what the Army is doing today- transforming to meet the twenty-first century's National Military Strategy.

I will then discuss the Army Chief of Staff and the Secretary of the Army's transformation strategy and the legal implications of that transformation. I am sure the Army will need the Judge Advocate General (JAG) community's help to solve some of those legal issues we are confronting today. Some of these issues Congress has laid out in front of us and others are the result of our own contracting efforts, which don't always come out the way we expect.

My first acquisition assignment was to the Bradley Program Office, and it was an interesting step for me. As a student at the Command & General Staff College at Fort Leavenworth, Kansas, I received orders assigning me to DRCPM-FVS. I asked, "what is that?" I didn't have a clue. I learned this was the Bradley Program Office and then spent three years in the program office just as it was going through an Army Systems Acquis

tion Review Council (ASARC). That was my first encounter with acquisition law.

I arrived at the program office in 1979. At that time there was a law on the books stating that if the Bradley program didn't begin production of the Bradley Infantry Fighting Vehicle by 1980, then it could not be produced. The Bradley program conducted a series of reviews designed to put the Bradley into production as Congress directed (because the Army couldn't make up its mind).

The Bradley program actually began in 1963. I joined it in 1979. The program started out in 1963 as the Mechanized Infantry Combat Vehicle- the MICV '63. During the same period, the Army started another program called the Army Reconnaissance Scout Vehicle (ARSV), which had two competing variants-wheeled and tracked. The Army made several attempts to consolidate the MICV '63 and ARSV programs only to split them apart each time. By 1979, Congress had grown weary of the Army's indecision. Congress then said to either get on with it or forget it. That is when they set the 1980 production deadline. This was my first encounter with the legal and acquisition processes intersecting.

The second encounter was a more interesting one for me. I was directed to report to Aberdeen Proving Ground with an Air Force colonel named Burton in order to observe the Bradley live-fire testing. I wondered why an Air Force colonel was testing an Army vehicle. At the conclusion of the live fire testing, I reported to General Merryman, who was the Deputy Chief of Staff for Research, Development, and Acquisition at the time, to back brief him on the test. Coincidentally, Colonel Burton was working in the same office in which I would work years later-the Defense Research and Engineering for Test and Evaluation, Office of the Secretary of Defense. That was the second set of legal issues that I got involved in which defined acquisition. The event led to the laws under which we must conduct live-fire testing today.

I could relate many stories that demonstrate the link between the law and acquisition. Mr. Norsworthy3 could probably tell you a few dozen that

I've asked him to solve over the last couple of years. I'll mention some of those stories in context during today's lecture.

Acquisition has always been exciting and interesting for me. I really think that the acquisition community has a great deal to contribute to the future of the Army. My experience has been that most of the Army is focused on what is happening today: the readiness of the Army to meet its mission requirements, to fulfill the Regional Commanders-in-Chiefs' (CINC) requirements around the world, and to carry out what we are directed to do under U.S. Code Title 10-to raise, train, and equip the Army.

What does that leave for us? Our responsibility is not only to the Army of today, but the Army of the future. We have been blessed with a pretty good Army in the last half of the twentieth century. Our challenge is to make sure our future soldiers inherit an Army that is equipped to do the job that they are asked to do. That means we are asked to put on our thinking caps, to look into that crystal ball and try to figure out what the Army of tomorrow should be like. What I want to show you is the path I believe we are on today. A lot of it isn't crystal clear, but we have to crystallize it soon with some good ideas.

You will be challenged in areas of intellectual property rights for which there is no case law. Information technologies are abounding now, but when current case law was written, there were not a lot of microprocessors in use around the world the way we are going to use them in the future military. We will have to figure that out.

One of the major issues on the table today concerns information security. What are the security requirements for a tactical Internet? Who is going to be allowed to use it? What information will travel across the tactical Internet? We are going to have all sorts of interesting discussions about that. It seems very easy to secure information when it is written on paper in black and white. It is an altogether different matter when that same information is located on a disc drive. Imagine the legal records you are going to have to reference in the twenty-first century. How much of the information on that tactical Internet disc drive needs to be saved? Where do you save it? Who is responsible for it? How do you refer to it? Who has access to it? What happens when the information is never delivered to its intended recipient, but just gets stored in the ether somewhere, never quite making it because the electrons get lost? I know it is hard to believe, but sometimes out there in that great ether, electrons never make

it from the sender to the receiver. I am sure the electrons are out there somewhere and I am equally sure that some electrical engineer can prove that they really aren't lost, but we argue an awful lot about what happens in those lines of code and where the information goes when the electrons are misdirected.

Another set of issues that we deal with is the business of testing. Airplanes fly today based on a model. When the Wright brothers attached a cable with some levers back to a control surface, it was pretty easy to figure out that when they pulled on a specific lever, a control surface moved, and the aircraft moved up or down, left or right. Today, that lever isn't attached to any cable; it is attached to electrons. A model designates what a specific surface will do. In some cases, one only need enter flight instructions into a computer and the plane responds to the inputs. Who really is flying that machine? You can take that on to the next step as we move to unmanned vehicles and try and determine the legal responsibilities [for] these systems, particularly if we use them in lethal roles. There is going to be a whole new set of issues that emerges as we develop these weapon platforms of the twenty-first century.

With that introduction, I'll begin the main theme of my presentation. The presentation will cover some history and it will explain where the Army is headed. It will also show that, even though times have changed, many of the issues we are dealing with today are not new. Whether it was General Washington equipping and supplying the Revolutionary Army or General Shinseki developing equipment for the Objective Force in the Information Age, many of the same issues still apply.

Today, we move into the twenty-first century, but we are still trying to solve the same problems of equipping our armed forces and doing it legally. It is interesting to go back and look at the history of materiel acquisition. When Washington crossed the Delaware in 1792, the Treasury Department purchased War Department supplies. You can imagine the difficulty that caused. In 1798 the War Department and the Navy Department were given authority to procure their own supplies. That was probably the first set of legal issues that were raised as our forefathers identified the Executive Branch roles.

In 1809 the first federal statutes requiring advertising were written. You can all imagine the discussion that took place when people realized they could no longer buy from familiar contacts or friends, regardless of who had the "best" deal. The War Department began trying to figure out

how to get the best supplies for the armed forces and how to do it in a fair and equitable manner. The next step in the procurement evolution was the introduction of sealed bids. The government was required to advertise once a week for four weeks and award the contract to the lowest bidder. There were also some constraints inherent in the sealed bid process. Sealed bids had to be opened in the presence of two witnesses and even more constraints were put on top of that. Over time, one can see that new laws were written, usually in response to abuses of the system. The Army then went to abstract bids in 1843, and advertising...