Disrupting Acquisition Blog

Dr. Griffin Can Procure More of His Christmas List!

by | Sep 16, 2019 | Contracting

10 USC 2373

10 USC 2373 expands to include telecommunications — and opens doors to easier, faster procurements included in USD(R&E)’s Top 10 Technology Focus Areas.

The Department of Defense now has a new authority to rapidly acquire 5G, apps, cyber, phones, IoT, satellites, cloud, encryption, AR/VR, AI, robotics, and autonomy.  Expansion of a seldom-used procurement authority makes it easier to get to the majority of Dr. Mike Griffin’s Top 10 Technology Focus Areas for USD(R&E).

If you haven’t tried the oldest cool new acquisition tool yet, 10 USC 2373—aka Procurement for Experimental Purposes—recently expanded to include telecommunications.  Previously, some of these procurements could fall within the signal authority but this expansion makes the authority clearer.

The full statute—three paragraphs—is here and it’s so easy: https://www.law.cornell.edu/uscode/text/10/2373

10 USC 2373 allows DoD and Services to buy necessary quantities for testing or experimentation in 9 technology areas, including the latest addition: ordnance, signal, chemical activity, transportation, energy, medical, space-flight, telecommunications, and aeronautical supplies and their parts, accessories, and designs.

You may have read my article about 10 USC 2373 at my pre-MITRE blog, but it’s over a year old now, so I have few additional details if you’re considering using this tool to experiment with, say, apps or 5G that those game-changing start-ups are bringing you.

If you’re new to 10 USC 2373, here are a few things to keep in mind about this statute:

  • 10 USC 2373 is good for try-then-buy, experimentation, operational assessments, technical evaluation, assessment of operational utility, safety, residual operational capability.
  • 10 USC 2373 could be a predecessor to an Other Transaction for Prototype as part of a larger acquisition strategy for Middle Tier of Acquisition (MTA).
  • Although to date there is nothing that specifically says Procurement for Experimental Purposes can’t be a predecessor to Other Transactions for Production, nothing says it can be either. Thus far only successful Other Transactions for Prototype can clearly transition to an Other Transaction for Production.
    • Wouldn’t it be cool if Other Transactions for Production could be expanded to include that possibility explicitly? You know, instead of someone trying it and waiting for a legal reading after the fact? The Section 809 Panel’s Recommendation #81 opens the aperture for  pathways other than OT for Prototype to get to OT for Production.
  • 10 USC 2373 is NOT the same as Other Transaction Authority—that’s a different statute. They can be sequentially implemented or maybe combined, if it makes sense for an acquisition strategy but they are not interchangeable statutes.
  • The buying office must have the authority to use this statute. Explicitly. No guessing. No sneaking around it. If you don’t know if you have it, ask your Policy Office. If you don’t have it, your Policy Office can craft the authorization documentation and send up the request. Why not? Be bold and mighty forces shall attend thee!
  • This statute is not for inventory. Buy only what you need to test or experiment. Otherwise you must do FAR-mandated actions for anything quantities above what you need for testing or experimenting, and that blows your chance to reduce lead time and simply the entire buy. If you need quantities for something else, there are other ways to get them.
  • Procurements under 10 USC 2373 can be sole source, competitive, or limited competition—without a Justification and Approval (J&A) document. Documentation normally consists of a 1-2 page memo signed by the Contracting Officer and Program Manager, and occasionally Legal Counsel and a senior Contracting leader in the Contracting Officer’s organization. If your Competition Advocate insists on a J&A straight out of FAR Part 6 and supplements, point out the exceptions referenced in the statute…or ask your Legal Counsel to point them out. A Competition Advocate’s lack of experience with or lack of knowledge of 10 USC 2373 is not a good enough reason to waste resources on a J&A and its approval process.
  • Usually contracts or agreements awarded under 10 USC 2373 use R&D or O&M funds, depending on purpose of work and sometimes local legal interpretation. The funding type should always reflect fiscal law.
  • The result of a Procurement for Experimental Purposes can be a FAR-based contract citing 10 USC 2373 as the authority or some other arrangement, even resembling the type of agreement written under Other Transaction Authority.
  • A Contracting Officer or Agreements Officer warrant is required; which kind of warrant depends on whether the agreement is FAR-based or non-FAR-based.
  • 10 USC 2373 procurements are not subject to the FAR, DFARS, reviews, clearance processes, etc, (similar to Other Transaction authority) but the buying office leadership may prefer a familiar FAR-based process.
  • Some organizations require a senior contracting official’s approval (such as Air Force for $1.5M actions and above), but no statutory or regulatory ceiling exists under 10 USC 2373.

Imagine: if you get started today, how many 10 USC 2373 procurements can you have completed by Christmas? Yes? Yes? So get out there and rapidly experiment with the latest tech to explore for military solutions!





Disclaimer:  The opinions expressed here are those of the authors only and do not represent the positions of the MITRE Corporation or its sponsors.


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