Some things just burn my behind because of their sheer
stupidity. Once such example is the LCS,
specifically, the entire concept of shore-based, contractor supplied
maintenance. That was stupid on a plate
with a side helping of idiotic fantasy spread with a delicious icing of combat
impracticality. From day one, in the
entire universe, only the Navy didn’t instantly recognize that maintenance
model as a failure waiting to happen.
Only someone as stupid as a Navy admiral could fail to see the flaws in
that maintenance model.
Now, from a USNI News website article,
So, having thrown away a generation of naval ship development, an entire class of ship, and flushed billions of dollars down the drain, the Navy is finally recognizing that contractor-led maintenance might not be the best approach? Well, welcome, Navy. Welcome to what the rest of the universe has known for decades. In fact, we’re throwing a massive ‘told you so’ party in your honor.
How many admirals does it take to screw in a light
bulb? No one knows because they’ve never
yet done it successfully.
_____________________________
Industry experiments with direct contractors have been met with mixed success. In particular, the Navy is moving away from the contractor-led maintenance model that prevents sailors from servicing equipment on ships. In particular, Lockheed Martin’s Freedom-class littoral combat ship design relied on contractor maintenance.[1]
So, having thrown away a generation of naval ship development, an entire class of ship, and flushed billions of dollars down the drain, the Navy is finally recognizing that contractor-led maintenance might not be the best approach? Well, welcome, Navy. Welcome to what the rest of the universe has known for decades. In fact, we’re throwing a massive ‘told you so’ party in your honor.
https://news.usni.org/2023/10/04/lockheed-ceo-pitches-pentagon-on-subscription-software
"How many Admirals..."
ReplyDeleteThanks CNO for my ration of coffee-spitting!!
Have to agree-as someone who went through ET school, and can still troubleshoot things to a component level based on the incredible training, contractor-led anything seems absurd. Short of external hull maintenance in a drydock, the idea of not being able to do almost anything with the gear in your department/division is just dumb. I always thought the idea was that the crew was supposed to be able to maintain and repair their equipment and do so regularly, so that they were intimately familiar with it, so that battle damage repair would be second nature. Anything less seems self defeating...
I know the Navy used to spend a LOT of money on schools and training, and wonder if/how thats changed. Could that be a place where the Navy decided to cut costs? Was that part of the equation perhaps??
In addition to the problem of the crew not being able to maintain the ship at sea, I see another problem with relying on the contractor to do maintenance:
ReplyDeleteThere's every possibility that, in the not too distant future, we'll be in a major power war, most likely with China. Note that ship maintenance in that war will have to be largely conducted in the war zone, within range of Chinese missiles. And of course the maintenance facilities will be prime targets for the Chinese.
So what are the moral implications of sending civilian contractors into a war zone to do ship maintenance? And what can we do if they refuse? After all, they're civilians. We can't exactly line them up against a wall and shoot them for desertion ! Or even send them to Leavenworth prison! Since THEY'RE CIVILIANS !!
I've generally assumed that if we ever get into a major war, the government would employ the DPA (or whatever additional laws they need to enact) to impress whomever they need to impress and immediately get access to to all of the stuff that's supposedly contractor owned or maintained.
DeleteIt won't be morally correct, and probably not constitutional, but that'll go out the window the minute the bullets start flying. The companies like Lockheed will get paid a fortune for "giving up their IP" and hopefully the maintenance guys who get pressed into service will too, but the former is more likely than the latter.
And of course, it'll be too little too late, because the current level of maintenance capacity can't seem to keep key assets at even peacetime levels of readiness.
On the brighter side, no one will be risked on account of the LCS, since they have no discernible war-fighting capability.
"government would employ the DPA (or whatever additional laws they need to enact) to impress whomever they need to impress and immediately get access to to all of the stuff that's supposedly contractor owned or maintained."
DeleteAssuming you're referring to the Defense Production Act, my limited and non-legal understanding indicates that there is no provision for impressment (involuntary drafting) of people or seizure of private/corporate equipment or goods. DPA allows the government to prioritize contracts and force companies to accept those contracts. I am unaware of any provision allowing the government to obtain intellectual property.
You might want to review the DPA provisions. I don't think your understanding is correct.
As I said, if they can't use the DPA, they'll simply pass other laws or executive orders to do so. Impressing contractors sounds crazy, but fundamentally it's no different than drafting someone. And sure, I understand that that's not how the SSA is currently set up, but my point is any law can be changed simply by passing a new law.
DeleteThat goes for the other provisions of the DPA as well, although I do believe it's sufficiently broad in scope to allow the president to obtain any IP (such as the software code in the F-35 that's owned by its builders).
Here's the text of the DPA:
https://www.fema.gov/sites/default/files/2020-03/Defense_Production_Act_2018.pdf
The first section says:
"The President is authorized (1) to require that performance under contracts or orders (other
than contracts of employment) which he deems necessary or appropriate to promote the
national defense shall take priority over performance under any other contract or order, and,
for the purpose of assuring such priority, to require acceptance and performance of such
contracts or orders in preference to other contracts or orders by any person he finds to be
capable of their performance, and (2) to allocate materials, services, and facilities in such
manner, upon such conditions, and to such extent as he shall deem necessary or appropriate to
promote the national defense."
-----
Shorten down some of the legalese and it reads:
The President is authorized to require performance under contracts or orders which he deems necessary or appropriate to promote the
national defense shall take priority over performance under any other contract or order, and to require acceptance and performance of such
contracts or orders by any person he finds to be
capable of their performance.
Simply put, the President may require a person or company to ACCEPT and PRIORITIZE PERFORMANCE of a contract he deems necessary to national defense.
So theoretically, the President can write a contract that says, "Lockeed Martin must immediately turn over all software code and information regarding the F-35 to the US Government in exchange for $1".
This sort of thing has never been done before, but no government has ever been stupid enough to allow a company to hold the exclusive ability to repair and maintain a piece of weaponry like this.
So I acknowledge that it's uncharted territory, but it's just common sense when you think about it. The government made the legal provisions we're talking about. It can change them.
Your interpretation of the DPA is ... um ... fanciful, shall we say? Even in wartime, the Constitution still exists and the government is still bound by it. In my non-legal view, the DPA, itself, is questionable from a Constitutional perspective and I suspect it would not stand up if challenged in court.
DeleteContrary to your opinion, the government can't just make up any law it wants. That's called a dictatorship. Admittedly, the government hugely overreached during the Covid pandemic but, eventually, almost all of those 'laws' were found unconstitutional and overturned.
There's no such thing as a contract to turn over intellectual property. That's called extortion or theft. A contract is when two parties mutually agree to an exchange of goods or services.
You're welcome to your view but, as you acknowledge, it's never been done and that pesky Constitution stands in the way.
ComNav,
DeleteI actually have legal training, and respectfully, I'm confident in my position. Let me try to address your objections.
1. Yes, the Constitution exists (and is important), but
A. It grants wide-ranging authority to the government to do almost anything in the name of national defense.
B. Most crucially, courts have interpreted war powers very broadly when challenged. For example, see Lincoln's suspension of habeas corpus in the Civil War, modern detainments post 9/11), the internment of Japanese Americans in WWII, etc.
C. While, many of the pandemic "state of emergency' laws were found unconstitutional, significant ones (which I would personally agree were obviously unconstitutional) have not been. More concretely, all of these examples have a common element. Such laws are almost never declared unconstitutional DURING as state of emergency. It's only after the fact that the court reigns in government behavior.
2. From a legal perspective, intellectual property is just like any other property. As such, it can be bought and sold. And in some cases, it can be legally seized by the government for public use. This is expressly confirmed by the 5th amendment, which establishes the terms for using eminent domain. It doesn't forbid taking of private property, but merely requires that the government compensate the owners.
Simply put, the Constitution allows conscription (see the Selective Draft Law Cases) under Article I, Section 8's power to raise a military and allows the taking of private property (which includes intellectual property) for public use under the 5th Amendment.
Every example you cited has been declared unconstitutional or, in the case of unresolved cases, deemed unconstitutional if it went to court (internment, for example).
DeleteOne of the reasons past violations of the constitution occurred is because they occurred during a period when communications, media, and advocacy groups were severely limited in scope (Civil War, WWII, for example) and resources.
Almost every pandemic 'law' that went to court was ultimately found to be unconstitutional. As was noted, a pandemic (or war) does not suspend the Constitution.
The quicker people challenge unconstitutional decrees, the quicker they're addressed and overturned. That's one of the key differences between now and, say, WWII. Today, we have extensive advocacy groups with legal resources. Those did not exist in WWII.
Even the War Powers Act is almost certainly unconstitutional, if it were challenged, since it directly violates/contradicts multiple enumerated powers of Congress in the Constitution.
Eminent Domain has been heavily abused and, in many instances, sharply curtailed by various courts. The govt would face a high bar to establish a need sufficient for seizure of intellectual property and would have little practical recourse to force compliance. What is the govt going to do, shoot someone because they won't tell the secret formula? Physical items can be seized. Intellectual property is much more problematic to seize, especially from an uncooperative victim.
You're welcome to your opinion, fanciful as it is. This is not a legal blog so there's no need to pursue this any further. That should terminate this thread.
Respectfully, this is not a discussion that should be terminated because the topic at hand is inescapably a legal one.
DeleteDoes the US Government have a legal right to maintain its weapons (ex F-35, LCS), or does it have no recourse but to rely on the contractor?
Without recourse, there's not much point in pointing out that contractor led maintenance is bad. There needs to be room for discussion of what to do about it. And that's a legal question.
" the topic at hand is inescapably a legal one."
DeleteWhich is why it's not appropriate for this blog. We're done.
What is really sad is that the whole idea of crew performing repair and maintenance was generally regarded as a significant strength of USN versus Soviet Navy and PLAN. Russians, in particular, had very poorly trained and qualified enlisted personnel, who were nasically just equipment operators, and counted on officers to fix things that broke down. Based on the headcount breakdown for the Chinese sub that got destroyed the other day, China appears to have a similar situation. Our ships may not have been bristling with quite as many guns and missiles and other do-dads as theirs were, but the ones we did have did work, and we had sufficient repair and maintenances personnel and spaces and equipment and supplies to keep them working.
ReplyDeletehttps://www.defensenews.com/air/2023/10/03/wittman-says-patience-wearing-thin-on-f-35-sustainment-plan/
ReplyDeleteCongressman Witman is the chairman of the defense committee asking hard questions about this matter. This Ch Witman seems to be on the right track about exposing the arrangement with Lockheed as the stumbling block for improving readiness. I hope congress digs deeper into this !
From this same article , " If the JPO has used the last six months to work with F-35 manufacturer Lockheed Martin and nail down its plans for how to fix the fighter’s disappointing availability rates, Wittman said, that would be understandable and time well spent. "
Delete" Lockheed as the stumbling block for improving readiness."
DeleteTo be clear, the stumbling block is whatever Defense Dept idiot approved this arrangement. That person should be court-martialed and/or fired.
Industry - Lockheed, in this case - is just doing what they are bound to do which is make a profit; AND THEY ARE!!!! It is not industry's responsibility to ensure military readiness. It is industry's responsibility to ensure profits. No one forced the military to enter an idiotic maintenance/supply arrangement. They did that willingly and knowingly.
The stumbling block is the military, not industry.
Perhaps I should have been clearer "exposing the arrangement with Lockheed "as the stumbling block for improving readiness. . I agree with you.
Delete""exposing the arrangement with Lockheed "as the stumbling block for improving readiness. "
DeleteEven this statement is only partially correct. Yes, the maintenance/supply arrangement is an impediment to readiness but it is hardly the only factor and, possibly, not even the major one. Readiness is negatively impacted by our unwillingness to fund sufficient repair facilities and establish extensive skilled trades recruitment and training programs. Deferred maintenance by the Navy has caused far more readiness problems than anything Lockheed has or has not done. Minimal manning has resulted in physically degraded ships and Lockheed had nothing to do with that. And so on.
"The stumbling block is the military, not industry."
ReplyDeleteHaving CONOPS for ships, planes, etc has been hammered a ton here. But, if you look at the bigger picture, it seems as if we've just lost a CONOP for the Navy in general. If we had one, and pursued it, we wouldnt have all the issues we do. It seems as if the DON is rudderless, and just blindly sailing into one mess after another, with no cohesive destination, or route to it, in mind...
Question is, will the navy turn this around ? The article above shows that congress is investigating the lack maintenance of the F35 and is asking why the readiness is so low.
DeleteDoes being a money funneling operation for the defense industry count as a CONOP?
DeleteThe damage of the LCS has, unfortunately, infected the fleet will be a tough nut to crack. Long ago I read that the LCS would be manned by "seasoned sailors" no less than E-5. That these sailors would be "Operators, not Maintainers". This attitude has infected the fleet.
ReplyDeleteCurrently the USS Kearsarge is in a very lengthy dry docking avail. When you walk on the ship, if you hear a needle gun it is in the hands of a contractor.
Ships return from deployment looking like rusting hulks. What are they doing as they cross the Atlantic on the way home? I can't imagine the CO's pride in his ship walking down the pier in Norfolk and seeing running rust all over his ship.
Getting rid of the SIMA's where sailors would go on shore duty and learn some serious component repair or the repair ships was the worst thing the Navy has ever done. Those sailors learned valuable skills in those shore duty rotations which made them very valuable to the ship when they returned to sea duty.