Fact Sheet: The Right-to-Repair for the United States Military

The Problem

The Department of Defense (DOD) is at a strategic disadvantage in safeguarding and advancing vital U.S. national interests, resulting in part from the way they treat intellectual property: The DOD acquires major weapons systems for which it often does not have the rights to operate or maintain. Instead, the contractor that has sold the weapons system to the DOD retains those intellectual property rights, which in turn allows them to charge the military for the operation or maintenance of the system over its lifetime. It is challenging for service members when they have to depend on contractors for critical repairs in the field. They often encounter contract-imposed restrictions on their ability to diagnose, repair, and maintain weapons and equipment, therefore impeding readiness and contributing to higher sustainment costs.

Throughout the years, defense contractors have held intellectual property rights for major defense acquisition programs.Many defense contractors are wary of relinquishing massive revenue streams pouring in from operating and maintaining DOD weapons systems.¹ The contractual intellectual property restrictions on systems owned by the military enable contractors to garner long-term profitable gains on maintenance and repairs for major defense weapons systems, which can make up as much as 70% of any program’s total cost.² The Government Accountability Office (GAO) has reported that defense contractors will sometimes purposely bid low to reap long-term profitable sustainment costs. The repercussions of the DOD not acquiring intellectual property rights include reduced readiness, cost growth, and repair challenges. The lack of technical data rights for major weapons programs impedes sustainment plans to save on costs and leads to gaps in maintenance capabilities.

The F-35 Joint Strike Fighter program, some of the Navy ship programs, and a number of Army vehicles experienced reduced readiness and spiraling sustainment costs because the DOD does not have the right to repair, therefore preventing them from gaining fair and reasonable access to repair information and materials.³ The repair and maintenance restrictions placed on the military put readiness at risk in many areas, from negatively impacting strategic military training for Marines in South Korea because a warranty clause interfered with the maintenance of broken generators, to significant delays repairing engines that Marines in Japan needed because the engines had to be shipped back to contractors in the United States for repairs that took months. The Joint Strike Fighter program alone — a program estimated at $1.7 trillion for just 2,500 F-35s — faces delays, inadequate repair equipment, and costly maintenance issues as a result of the right to repair issue. The military cannot continue to miss vital exercises designed to increase readiness in large part because contract repair services are too expensive, unreliable, or nonexistent.⁴

Service members on the battlefield and in the line of duty were often restricted from accessing repair and maintenance materials for critical military components during life-threatening situations: Retired Army Master Sergeant Wesley Reid, in conversation with the Public Interest Research Group, recalls an instance from his deployment in Afghanistan when he was not able to repair a critical diagnostic feature used in CT scanners to detect internal bleeding in his wounded fellow soldiers, which put their lives at risk. The sergeant would call support requesting access repair to the microcontroller for the CT scan during an urgent and perilous time, and the manufacturer would fail to deliver on maintenance. This is just one example of many caused by DOD’s lack of fair and reasonable access to information and repair materials, including parts and tools.⁵

The DOD gives hundreds of billions of dollars annually to contractors for the procurement of weapons systems. Yet the equipment is frequently subject to contractor-imposed restrictions on diagnosis, repair, and maintenance, which prevents service members from performing the needed repairs across the product’s lifecycle.⁶ Contractors may refuse to grant service members access to essential tools or data, or they may invalidate the equipment’s warranty if service members undertake their own repairs.

The Solution

Congress should act to ensure the military has fair and reasonable access to repair information and materials, including parts and tools, to ensure the military can repair its own equipment. It is paramount that the DOD have intellectual property rights to operate and perform maintenance throughout the program’s life cycle. Fortunately, there is a bill that would address this: A bill introduced by Representative Marie Gluesenkamp Perez (D-WA) and Senator Elizabeth Warren (D-MA), (H.R.10401) (S.5497), is designed for the DOD.⁷

Contact

Omar Tabuni, Government Affairs Manager, Project On Government Oversight,  [email protected]