Opinion

F-35 Is Poster Child for Flawed Government Contracting

By Brian McNicoll
December 3, 2019 at 5:00 am ET

One day, when the F-35 program is dead – largely of its own hand – its tombstone will read: “If only this had been tested properly.”

The fighter jet – begun as a project to promote interoperability both among the various branches of our services and between our armed forces and those of our allies – never has reached its potential because it was rushed into production without sufficient testing.

When the program began in the mid-1990s, the Pentagon brokered various compromises between the Air Force, Navy and Marines as to design and functionality of the fighter jets, then wanted to rush them into production before the deal fell apart.

Only engines, flight control systems, software and autonomic logistic systems were early in their development, and a large and expensive set of problems arose. By the time the fixes were made, the failure to take the time to test had cost the Marine general in charge of the program his job, the various branches to reluctantly to agree to take less than promised and American taxpayers $1.7 billion to correct all the errors.

One would think Lockheed, maker of the F-35, would be all for careful testing before moving any other products to market. But the firm appeared to see a chance to extract a few more dollars from the American taxpayer, and it now wants to claim intellectual property rights – and to sell them at an appropriate price – for a testing program it says it designed independent of its obligations under the F-35 contract.

The dispute over the product – known as the “F-35 In a Box” – has been going on for 2.5 years, and until it is settled, no more F-35s can be built or deployed. The largest single weapons program in military history – and one critical to the profitability of one of its chief defense contractors – is on hold because Lockheed refuses to turn over data that would enable activation of the Joint Simulation Environment, which, according to Aviation Week, “creates a synthetic world that allows operational testers to gauge the F-35’s performance in theater-level scenarios, with multiple aircraft flying against an adversary’s full arsenal of fighters, missiles and electronic warfare capabilities.”

The fighter jets have completed 91 percent of required testing in traditional open-air environments, but they can’t go into full production until tested in the Joint Simulation Environment, Robert Behler, head of the Director, Operational Test and Evaluation Office, told a House Armed Services Committee subcommittee recently.

Lockheed has made intellectual property claims over nine algorithms that enable the “F-35 In a Box” software testing package to virtually replicate the F-35’s sensor subsystems and the “brain” that fuses them together. The government then adds software modules to replicate various threats, Aviation Week explained, “including aircraft, weapons and sensors of various adversaries.”

The F-35 program office brought in the Defense Contract Audit Agency to review the matter, and it found no evidence Lockheed developed the nine algorithms independent of the F-35 contract. So, since government is paying for the F-35, it also is paying for the means of testing it before it enters production. In short, the algorithms belong to the government, in the opinion of the agency, and Lockheed should turn over the data.

Lockheed has appealed the decision to the Armed Services Board of Contract Appeals, but no decision has been reached.

A Pentagon- and perhaps government-wide showdown is coming over the intellectual property rights that attach to the software that runs the systems we buy. Our military operates as much on software now as it does on nuts, bolts and boots – and the trend figures only to intensify.

The Department of Defense already is working on a Pentagon-wide policy, modeled on an approach adopted by the Army last year, that requires contractors and government agencies to agree up front on what software will be government property and what will not.

“Before we put together an acquisition strategy, you have to think about what information is critical to a program, particularly in terms of sustainability, so that you’re not always held hostage to the prime [contractor] on that through the life of the contract, and [so] that you can find better cost solutions through a variety of different providers,” Ellen Lord, undersecretary of defense for acquisition and sustainment, said in testimony before the Armed Services subcommittee.

To further complicate the process, two-thirds of the life cycle of a weapons program is made up of sustainment – identifying and fixing problems, updating and refurbishing to reflect new technology – so defense contractors, who often bid low to win contracts in hopes of making it back on sustainment, are not yet on board with these costs being delineated upfront.

But for now, Lockheed, of all contractors, should see the need to promote testing that will promote production – at full rates for its factories – of the F-35. Because if ever there was a weapon system that needed all the testing it could get and a contractor who needed it to prevail in those tests, it is this system and this contractor.

Brian McNicoll is a columnist who has worked as a newspaper writer and editor, as a senior writer for The Heritage Foundation and as director of communications for the House Committee on Oversight and Government Reform.

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