The commonly understood “valley of death” is between technology development and transition to a program of record with subsequent fielding of real capability to the warfighter. Said another way, a technology is developed and sits on a shelf without any benefit to the warfighter and the transition into a program of record.

The new valley of death is created when a middle tier acquisition prototyping effort reaches the legal five-year deadline and is not fully supportable or fielded in enough quantities to have warfighting significance. One can also argue that the increasing trends toward prototyping through other transaction authority (OTA) (as part of a middle-tier acquisition or not) can fall into this new valley. Congress is also concerned that this acquisition reform may falter.

The Government Accountability Office released a June 2019 report titled Leadership Attention Needed to Effectively Implement Changes to Acquisition Oversight. In the report GAO finds “As a result, DoD is not well positioned to ensure that approved middle-tier acquisition programs represent sound investments and are likely to meet the objective of delivering prototypes or capability to the warfighter within 5 years.” GAO is reinforcing our concern about the new valley of death. However, they don’t provide a solution and we do.

We propose a promising approach to accelerate fielding of new capability without falling into the new “valley of death” is to pursue a hybrid middle tier acquisition/agile acquisition strategy. It starts with a middle tier acquisition of prototype(s) and allows for time and resources, beginning no later than year three, for full supportability analysis and development; while also completing long-pole documentation (e.g. capability documentation and analysis of alternatives) in accordance with the Acquisition Agility Act (AAA). This will enable a successful milestone B decision to go quickly into the Engineering and Manufacturing Development phase into the Production phase (milestone C) (i.e., milestone B/C, or—worse case—a milestone B followed by a quick C.)

Middle tier acquisition, which was passed into law in Section 804 of the National Defense Authorization Act (NDAA) for fiscal 2016, addresses rapid prototyping and rapid fielding. Because rapid prototyping, by law, avoids the burden of the formal Department of Defense (DoD) regulations, it is a particularly attractive method to begin a program today. But the more rigorous and detailed DoD Instruction (DoDI) 5000.02 and Joint Capabilities Integration and Development System (JCIDS) processes, which define acquisition requirements and evaluation criteria for future defense programs, may still lie ahead for prototypes destined for a more permanent operational capability.

DoDI 5000.02 and JCIDS process execution timelines are measured in years and require lengthy documentation and vetting through the Office of the Secretary of Defense, (OSD), Joint Staff, Service, Combatant Command and Agency staffs. Here, program sponsors must meet certain information requirements. Sponsors must develop and document capability requirements, acquisition strategies, and systems engineering plans. For example, the current DoDI 5000.02 identifies over 50 such requirements

Figure 1 shows a comparison of both approaches.

The AAA in Sections 805-809 of the FY 2017 NDAA directed numerous changes to these existing requirements and acquisition statutes. These changes are important for new starts or upgrades to existing programs of record (POR), including upgrades driven by middle tier prototyping efforts. Here are the high-level tenets of the AAA legislation:

• Joint Staff designates areas where capabilities related to major defense acquisition programs (MDAPs) should evolve to meet changing threats, enhance interoperability and more rapidly employ new technologies;
• MDAPs use a modular open system approach (MOSA), where practical, to enable that evolution, including cost savings, competition, and technology refresh
• Military services establish prototyping investments targeted, in large part, to maturing technologies suited to meet MDAP evolution needs;
• Technical data rights tailored for government purposes to be suitable for a modular, open systems approach.
• The Secretary of Defense shall provide oversight and establish cost, schedule, performance, and objective quantity goals for MDAPs;
• Independent risk assessments will confirm that technical and manufacturing risks are acceptably low;
• New milestone reports will to be provided by milestone decision authorities (MDAs) to Congress for greater transparency;

While most of the changes are encouraging, DoD still could use more relief from Congress in the following areas:

• Nunn-McCurdy relief associated with changing programs of record to incorporate new component upgrades without being penalized. The Nunn McCurdy Act (10 U.S.C. §2433) requires the DOD to report to Congress whenever an MDAP experiences cost overruns that exceed certain thresholds. A program whose cost growth exceeds the statutory thresholds is said to have a Nunn McCurdy breach. Programs in breach may be terminated if the program is not certified by the Secretary of Defense and restructured. AAA driven changes may cause Nunn-McCurdy breaches and are not necessarily the result of poor management. Although AAA-driven upgrades are encouraged by Congress, Nunn-McCurdy may potentially stifle innovation. We recommend that Nunn-McCurdy breaches do not apply to programs designated as Modular Open Systems Approach-based evolutionary programs that will integrate, test and field component upgrades to meet the evolving threat as intended by the Acquisition Agility Act.
• Congressional reprogramming authority increase to at least 20% of a POR budget to allow the new upgrade to get a jump start on staying ahead of the emerging threat. (This would notionally be the first year of a 5-year integration and test phase)
• A sufficiently funded pool to allow for prototyping, integration, and testing of the new component in the context of an existing POR.

The services have implemented middle tier acquisition and AAA in their tailored documentation to some degree, recognizing that both will be key parts of many acquisitions going forward. The Joint Staff should be commended for completing their revised documentation in accordance with AAA in August 2018.) Middle tier acquisition and DoDI 5000.02 updates are still pending.

Our warfighters need capabilities in the field now. The DoD doesn’t need a new regulation to start following the law now, especially laws that strive to make DoD acquisition easier. We encourage the defense acquisition community to better understand AAA and leverage it alongside middle-tier acquisition to ensure effective capabilities are fielded to the warfighter as efficiently as possible.

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