Defence and Security Procurement in Finland UrT 2024 no 2 p. 49
Public Defence Procurement in Norway UrT 2024 no 2 p. 61
If someone were asked to devise a contracting system for the federal government, it is inconceivable that one reasonable person or a committee of reasonable people could come up with our current system.
The U.S. defense procurement system is, notoriously, fiendishly complex. The author has more than once questioned the wisdom of having accepted the invitation to write a short introduction. An article of any length would necessarily omit salient features of a system whose complexity and prolixity are products of “the collision and collaboration of special interests, the impact of innumerable scandals and successes, and the tensions imposed by conflicting ideologies and personalities” over the course of 248 years. In fact, on closer examination the acceptance of this invitation not only demonstrated profound imprudence but also an astonishing degree of hubris. Surely anyone with the least common sense or a modicum of humility would have declined this kind offer. Alas, the present author lacks these and many other virtues and so will haplessly attempt what is almost certainly a fool’s errand.
With such a long caveat, perhaps it is already clear that explaining the workings of the entire U.S. defense procurement system in the allotted space would be impossible. The hard copy of the Federal Acquisition Regulation (FAR) on the author’s bookshelf itself spans 2,060 pages, the Department of Defense’s (DoD) supplement (DFARS) another 1,548 pages, and together the services’ supplements add thousands more. To this count must be added the thousands of statutes scattered across the U.S. Code, which are augmented by changes to the laws made by the annual National Defense Authorization Act (NDAA). And this does not take into account the rich body of precedent interpreting these laws and regulations not only in the Armed Services Board of Contract Appeals (ASBCA), the Government Accountability Office (GAO), and the Court of Federal Claims (COFC), but also in their various predecessor courts and boards. What is offered instead is a high-level summary both of the mechanics of the system and of the context in which it operates. And it is the latter that may be of most interest to the foreign audience reading this article. What this audience may find more interesting is not how the U.S. defense procurement system works but why it does so in a particular way.
From the author’s survey of the literature, at least three efforts have been made attempting to explain the broad outlines of the federal procurement system, mainly to foreign audiences, and only one law review article has been devoted to an overview of defense procurement. Some American readers may object that a separate article about defense procurement is superfluous because in a real sense U.S. federal procurement is defense procurement, both in that (a) the U.S. system is not bifurcated between defense and civil procurement the way that procurement in the European Union (EU) is and (b) purchases covered under the FAR are mostly made by the DoD, which is usually 70 to 80 percent of total procurement spending. Yet there are differences. This article, then, will concentrate on what may be of most interest to foreign audiences and in particular on what separates defense acquisitions from the rest.
Daniel Schoeni
PDF: A Primer on U.S. Defense Procurement UrT 2024 no 2 p. 87
Volym: 2
Sida: 87
År: 2024