Aileen Devlin/Daily Press/Associated Press
The Joint Light Tactical Vehicle was developed as a successor to the Humvee but proved difficult to maintain without contractor support. Military contractors’ terms of sale have prevented troops from repairing or even troubleshooting equipment in the field, leading to delays and excessive costs to the government.
For years, activists with the “right to repair” movement have fought corporate America’s efforts to prevent consumers from fixing and reusing technology found in electronics and heavy machinery. Many companies restrict access to embedded software and diagnostics, or to component parts and tools, without which the products cannot be repaired or modified. The reason why is simple—the companies would prefer that their own authorized agents and manufacturing facilities get paid to repair the products.
The front lines of this fight have typically been manned by hobbyists wanting to unlock phones, independent mechanics who repair cars, or farmers at risk of missing a harvest if they can’t fix a locked machinery circuit. Industries have spent millions to block right to repair, with John Deere even asserting that when farmers buy a tractor, they merely own a “license to operate the vehicle.”
Despite these efforts, right to repair has started to catch the attention of regulators and policymakers. Bernie Sanders and Elizabeth Warren have endorsed a national right to repair law, and the Federal Trade Commission held a workshop on the issue in July. And now another group has stepped forward to protest restrictions on fixing equipment: members of the military.
A remarkable letter to FTC Chair Joseph Simons from two active-duty Marines explains how service members must also contend with warranty restrictions, contractual requirements, and prohibitions on repairing military equipment. It’s an absurd example of the shift in power to defense contractors, who enjoy the ability not only to overcharge the government when selling it equipment but also to impose fees for maintaining it, while holding onto the core technology.
“The federal government and military find themselves in the same weak negotiating position as individual Americans regarding warranties and the right to repair,” wrote Lucas Kunce and Elle Ekman in the letter. “Enabling vendors to restrict who can repair their equipment creates economic inefficiencies and over-reliance that affects the military in terms of time, cost, and ability to accomplish its mission.”
Kunce and Ekman detail several incidents that they’ve either personally witnessed or heard about. A mechanic in Korea, they write, “was prohibited from conducting maintenance on a generator because the warranty would be voided.” Marines in a deployment who did try to fix equipment were “reprimanded because they voided the contract when they fixed the equipment.” Engines and transmissions have been shipped from bases in Okinawa, Japan, back to contractors in the U.S. “because repair efforts by Marines would violate repair support contracts.”
The Marines “are not allowed to repair,” says Kunce, a Marine major. “They miss expertise and training. When you ship everything back to the contractor, [Marines] don’t get to practice on it.” This robs military personnel of critical hands-on experience needed in hostile situations.
As Kunce and Ekman explain, this bizarre arrangement dates back to the 1990s, after the Cold War ended and policymakers sought to cash in the “peace dividend” to ramp down spending. In the “reinventing government” years under the Clinton-Gore administration, this played out in ways that empowered contractors.
First, Clinton Defense officials demanded that contractors grow bigger and fewer. At a famous meeting between top contractors and Defense Secretary William Perry, known as “the Last Supper,” Perry delivered the directive, and as a result 107 contractors merged into just five. The second innovation is euphemistically referred to as “acquisition reform,” but really it involved catering to defense contractors, explains Richard Loeb, a former procurement official and an adjunct professor at the University of Baltimore School of Law. “The Clinton folks went to the defense industry and said, ‘You are the seller, we are the buyer, how would you like us to buy from you?’” says Loeb. “Imagine going to a car dealer and saying that.”
Thanks to consolidation, by 2016, over half of all the dollars in Pentagon contracting went to sole-source contracts granted without competition. While defense procurement officers have tools to receive cost information from sole-source providers, acquisition changes allowed contractors to avoid supplying that information if they could label their product as a “commercial item.” The new rules redefined “commercial” as anything similar to a type available in the commercial marketplace, even if that market consists of just a tiny number of sales.
“If you look at much of the stuff the government buys, it has no effective commercial counterpart, there’s no market price,” says Loeb. “As soon as contractors use the word ‘commercial,’ it’s like when you show a cross to a vampire. They shove the cross in the government’s face, and the government backs off.”
This had two major implications. First, the lack of cost information allowed contractors to significantly overcharge for their products, with procurement officials kept in the dark about what they were buying. Second, the government couldn’t acquire technology rights on those items, which grew into an even bigger problem as military systems became more complex.
Technically, the Pentagon can ask to purchase the software and diagnostic data, but contractors seldom if ever agree to that. If the contractors said yes, they’d have to give up the prospect of being the exclusive maintenance supplier for billions of dollars in equipment. “That’s their business model,” says Kunce. “It’s tough to tell someone, your business model doesn’t work for me.” In practice, the Pentagon usually doesn’t get the technical data, even if the military needs the flexibility to repair on the battlefield.
That makes it difficult for military personnel to work on equipment. If they take something apart, all the warranties get invalidated, which puts the military at risk for not recouping funds if the products malfunction. Because the systems or component parts get labeled as commercial, the Pentagon is as stuck as a farmer with a tractor or a computer geek wanting to crack an iPhone.
This affects not only repairs, but also the diagnostic data required to troubleshoot equipment before it gets used in battle. Because that diagnostic software is proprietary, the military can’t check systems before deploying them. This leads to more problems for equipment, and more hours that the military must spend before it can employ that equipment.
In addition, improvised repairs on the battlefield are also verboten, because manufacturer restrictions prevent personnel from fabricating parts that aren’t factory-made. If a part is somehow unavailable due to a supply-chain problem or shortage, nothing can be done.
Kunce and Ekman describe two such incidents. The Medium Tactical Vehicle Replacement (MTVR), a troop and equipment carrier used since the late 1990s, includes a warranty that limits third-party repairs. The vendor, Oshkosh Defense, must have vehicles with problems shipped to its own facilities, incurring high shipping costs from all over the world, when Marine depot mechanics are eminently able to do the job on site. This also limits the capabilities of Marines in the field.
The Joint Light Tactical Vehicle (JLTV), a product introduced in 2008, is so complex, Kunce and Ekman note, that Marines were unable to maintain the vehicle “without support from the contractor field service representatives.” Training for the vehicle was ineffective and troubleshooting proved impossible; in the end, a health monitoring system proved inaccurate, which could have been figured out before the JLTV was actually deployed.
“Even if you look at traditional readiness, every time equipment is broken and in transit, that reduces readiness,” Kunce says, adding that the lack of real-world experience also contributes to the troops’ readiness loss. “The structure of commerce has created this situation for us.”
When right to repair was mostly about farmers, that was one thing. It seemed like an issue destined to come up once every four years as presidential candidates jockeyed for position in Iowa. But if the military is being impacted by corporations that lock in lucrative maintenance contracts, that changes the political dynamics. The FTC has inherent power to end this inequity and enact a national right to repair standard. Now, there’s a more urgent reason for them to do just that.
