“There is nothing new in the world
except the history you do not know.”
— Harry S Truman
10 USC 2373. Ever heard of it? If not, you’re going to, and most people will think that it was invented in 2018.
It wasn’t, and I have the war stories to prove it. Gather ’round….
My First 10 USC 2373
It was a dark and stormy night…. Okay, metaphorically, it was a dark and stormy night. The year was 1993 and the Program Office I worked with needed to test a particular product. Ordnance-related, in this case. All unclassified. To keep my example as generic as possible, I’ll just say that we needed to test two different manufacturing methods in hopes that the cheaper was just as strong. This contract was also a very small buy in the scheme of things, under $100K. We needed to buy only a handful of one product manufactured one way and an equal handful manufactured the other way. We needed to do it quickly, and the Contracting procedures at the time were burdensome, just like these days, but different burdens.
This contract action should have been sole source, not competitive, but at that time and at that Air Force base, the prevailing thinking was that we didn’t do anything sole source “unless the Russians are at the gate.” Exact, oft-repeated mantra and holdover from probably the 1960’s. No kidding. And yes, it sounded a lot funnier 3 years ago than it does today. Some of these Contracting processes are no longer in existence, thank the gods, but at the time it took creativity to award a quick-turn. The standard way of doing business meant running a “FAR 15.3 Source Selection,” as we called it back then, in reference to the regulation that described the competitive process for smaller source selections whereas a more complex process in the Air Force FAR sup ruled several levels of larger competitions because clearly these things can never be complicated enough. If you haven’t figured out yet how source selection procedures work, don’t get too attached: we seem to overhaul the entire process every 3 to 5 years anyway.
So on that metaphorical dark and stormy night when it seemed ridiculous that I was going to spend months in a source selection for competition for competition’s sake for such a small dollar (relatively speaking) purchase, I sat brainstorming with my all-time favorite Acquisition lawyer. I just couldn’t fathom wasting my time like this. That’s when he mentioned this bizarre little statute, 10 USC 2373, that we’d never used and I didn’t know anyone personally who had or anyone to ask to teach me.
But I was excited! I loved turning “guinea pig” into a verb.
“No one else is doing this? That means we gotta do it! Let’s guinea pig this!”
At the time, 10 USC 2373 was titled “Acquisition for Experimental or Test Purposes,” which we called “AETP,” pronounced A-tep. Later it was retitled “Procurement for Experimental Purposes.” If you ask me, neither rolls off the tongue nicely. But this was how I became Lorna Tedder, Mother of AETPs. When the name changed later, I never could get accustomed to calling it “PEP,” which sounded more like an erectile dysfunction drug, so I just shortened the name to “2373’s.”
Fighting to Keep 10 USC 2373
Over the next 25 years that I as a Contracting Officer awarded at least 30 more 2373’s and assisted with others while in staff positions in the ACE and in Policy, I watched changes in how 10 USC 2373 was perceived and the impression that it wasn’t needed, so let’s get rid of it. After using 2373’s only a few times, I had become the local expert, along with my illustrious legal counsel. I briefed other buying offices on using it, but the big Program Offices shrugged me off as “that’s a Lab thing” or “that’s just R&D and we never touch that.” So mainly it was just me doing 2373’s at my base and occasionally someone in the Lab, often someone I taught or advised. Leaders hadn’t done one, so 2373’s weren’t really encouraged by people who didn’t quite understand them.
Just when it looked as if the ability to use this statute would be taken away because it was perhaps not necessary, OSD’s very active Acquisition Reform office–which we just referred to as “Colleen Preston’s Office“–asked me to testify before Congress about why we needed 2373’s. Her staff had asked me directly for some information about my quick turns, and in response, Little GS-12 Me sent up a white paper without telling my chain of command about it because I didn’t even realize the implications of talking with Colleen Preston’s Office or going through, er, proper channels. While it’s true that if you knew better, you could do better, sometimes you’re willing to take a leap because no one’s told you that you don’t have wings or a net in case things go wrong. Amazingly, everyone in my chain of command was supportive, not freaking out about what I might say but offering generous advice. Rather than shutting me down, they were encouraging.
My white paper was about how 10 USC 2373 might have been used for the original Bunker Buster contract (test it in the arena?) and any similar future efforts as well as my concern for additional restrictions being placed on quick turn mainstays like Undefinitized Contractual Actions (UCAs). I might even have said, “How can you have quick turns for urgent needs if all our tools are taken away?” The Acquisition Reform guru’s office was intrigued and their staff called me often after seeing my ideas.
That must have been around late May of 1995 because I was slightly into my 30’s and I recall sitting with my 90-year-old dying grandfather, urging him to hold on until after my trip to D.C. because I wanted to make him proud. As an old man who in his lifetime had seen Halley’s Comet twice, the Wright Brothers’ first flight, man on the moon, Desert Storm, and laptop computers, he was completely flummoxed by the idea that they couldn’t find a man who could go testify before Congress about this important thing that he didn’t understand. He was a product of his time, but it was also out of great concern for me as his little granddaughter travelling alone to the big bad city. He lived a few more days but I never did fly to D.C. to testify. Something really strange happened instead and I wasn’t needed after all, but if you and I ever meet in person, be sure to ask me about the honest-to-God spy story that intervened.
Meanwhile, various Contracting organizations withdrew a Contracting Officer’s authority to use 10 USC 2373, and I watched from the sidelines as mine was one of them. Later, after a change in a regime or two, my organization regained the authority and I was using it again, plus teaching it to anyone who would listen when I took them by the shoulders and shook them.
The Magic of 10 USC 2373
To me, it was like magic. 10 USC 2373 is probably my second favorite Rapid Acquisition tool, right behind my technique for oral proposals. I became a 2373 evangelical, and I’ve never stopped.
What’s so special about 10 USC 2373? It allows the Government to buy certain products for testing or experimentation, as well as their designs. Believe me, there’s a lot of room for interpretation in the words testing and experimentation if you’re willing to open your mind.
You don’t have to have competition, though you can. In fact, this part of the statute loosened up recently. Early on, we followed the understanding that other statutes still apply but under certain conditions newly spelled out in the brief statute, you can ignore the usual statutes that are Acquisition norms. (This is new! Kicking my imaginary lectern here! This just opened wide! Hello!)
If you do choose to compete a 10 USC 2373 buy–oh, let’s say for a fly-off, the results of which could become a proposal for a logical follow-on or might flip over to an Other Transaction under 10 USC 2371–make sure to use non-FAR language in your source selection. Synonyms are okay, but if it talks like the FAR, walks like the FAR, and quacks like the FAR, it may be interpreted as FAR-based and subject to the restrictions of the FAR. Break out that thesaurus and rename key phrases! A word of caution: stay professional and don’t get too creative as some people out there have no sense of humor. You don’t have to take yourself seriously but always take your work seriously, and sometimes when you’re a little twisted, that’s a fine line to walk. Or so I’ve heard.
Think about where we are now vs 25 years ago. This means that 2373’s have become even more useful now as we have so many different types of technology to test and experiment with. Someone once told me decades ago that 2373’s were used to buy enemy tanks to be reverse engineered. That story is in the archives somewhere but this was told to me by someone who was involved. Oh, so many ways to apply this statute as we move from ancient reasons to a present day where average citizens are creating high-tech solutions in their garages or home offices!
Of the 4 technology areas that 10 USC 2373 could be used for–up until a recent change expanded them–I used 10 USC 2373 mostly for ordnance, occasionally for signal and aeronautical supplies, and maybe once for chemical. Every one I attempted went through, but I did follow the rules, however flexible they were. When I was a procurement analyst, someone dropped a muddled version on my desk to review, something akin to a golf cart on steroids to experiment with.
“How does the statute apply to this, huh?” I asked. “Unless you’re going to launch it and call it an aeronautical supply. Or maybe load it in a trebuchet and–wham–call it ordnance.”
Last year, while I was actually teaching innovative contracting practices, including this 2373’s, at SOCOM’s Revolutionary Acquisition Techniques, Procedures, and Collaboration (RATPAC) event in Tampa, the 4 technology areas for use were expanded to 8. I found out literally in the middle of my briefing when an attendee checked the link in the charts. The new language had been updated on my travel day! The additional 4 areas were medical, transportation, energy, and space-flight. See? That golf cart on steroids was ahead of its time!
I think it’s always a marvelous thing to see a positive acquisition statute be expanded rather than restricted, especially this one–one that’s been my baby for 25 years.
10 USC 2373 has been added to FAR sups and taken away over my tenure with them, but I see the writing on the wall as people try to interpret and reinterpret them as they deal with this new expansion of authority. The authority itself is relatively easy to understand–2 short paragraphs as follows, though if you want to use it, you should also check to see if your local supplements and guidance restrict your statutory authority. You know, so you can figure out how to challenge those restrictions. Also, it helps if you have legal counsel that’s as open-minded as mine always was.
10 USC 2373 Complete Statute
Here’s the statute as it stands today, with me hoping more technology areas will be added.
§2373. Procurement for experimental purposes
(a) Authority.-The Secretary of Defense and the Secretaries of the military departments may each buy ordnance, signal, chemical activity, transportation, energy, medical, space-flight, and aeronautical supplies, including parts and accessories, and designs thereof, that the Secretary of Defense or the Secretary concerned considers necessary for experimental or test purposes in the development of the best supplies that are needed for the national defense.
(b) Procedures.-Purchases under this section may be made inside or outside the United States and by contract or otherwise. Chapter 137 of this title applies only when such purchases are made in quantities greater than necessary for experimentation, technical evaluation, assessment of operational utility, or safety or to provide a residual operational capability
The Best Way to Use 10 USC 2373
The main way that I’ve seen 10 USC 2373 used is not even its most effective way. It’s easy to use this authority in lieu of J&A authority. This means (for Air Force at least) you do not have to write a sole source justification other than a D&F (Determination and Findings) that’s usually 3 paragraphs long and 1 to 1.5 pages long, and signed by the Contracting Officer and Program Manager. Some organizations add Legal Coordination at $1M threshold and in the Air Force, the Senior Center Contracting Official approves at $1.5M, but I’ve not seen anything much more restrictive than that. If your J&A process takes a long time, the D&F can be written and staffed in as little as an afternoon. The rest of the acquisition process can be a normal FAR-based contract, but as I said, there’s a more effective way than I’ve seen it most often used over the last 25 years.
This is what I want to prepare you for. I want you to understand what’s coming and how crazy good this is, and I encourage you to open your mind to the possibilities because it will turn “how we’ve always done it” on its head.
Now that Other Transaction Authority is expanding and becoming downright sexy, 2373 is right behind it. So listen closely: the most effective way of using 10 USC 2373 is not for it to replace a J&A and you write a regular FAR-based contract, but to write that D&F as your sole source justification and instead of writing a contract, write a non-FAR based vehicle like an Other Transaction, assuming you have an Agreements Officer and your location has OT authority. Considering that 2373 is for testing and experimenting, the agreements could be really simple–and so could the proposals, the solicitations, the negotiations, the pricing documentation. And that means that these could happen very fast, especially if you add other Rapid Acquisition techniques.
Look, I know I’m throwing a lot of rapid and streamlining techniques into one acquisition effort and I could throw a lot more than I’ve listed here, but Rapid Acquisition is no place for hoarders. You don’t use your best idea for this contract or that Other Transaction and save the rest of your ideas for later. Use it. Use them all. Never be stingy. Anything and everything that makes sense to help you go fast and still be legal. Blend 2373 and 2371. Add oral proposals to the mix. Maybe a solicitation that includes various RSS feeds and podcasts to get to more non-traditional contractors. Maybe priced based acquisition techniques. But don’t hoard ideas ever. Use then all now and then use them all again later. They get more than one life. They don’t only live once.
I’m not going to slake your thirst for 2373’s in one post. If anything, I want to get you thinking in this direction and make a few suggestions so you can maximize the potential of this authority.
If you work in a Program Office and your pain point involves cyber or IT or if you’re a contractor and that twinkle in your eye that you want to manifest into something usable is cyber or IT, then understand that those could be done under the signal area in 10 USC 2373 authority. (Foot stomp!) You know all that silliness going around about whether a word sounds like Yanny or Laurel? When you see the word signal in 2373 authority, I want you to hear a slightly nasally Cy-ber in your head or a low and lush I-T in your head. If you hear other words that still fit signal authority, that’s good, too.
Program Managers, is there a lightbulb over your head right now? Go see your Contracting Officer/Agreements Officer. Point them toward the statute if you have to. Contractors, ask your Program Manager to talk to his buying office about whether 2373 might be appropriate for your technology. Think hard about the technologies you want to push out into the world and press them against each of the 8 technology areas in 10 USC 2373 to see if they might fit. Think broadly, creatively, outside the box (what box?). Which of the 8 fits what you do best? Maybe you have more than one that will fit?
I’m hitting only the highlights here, of course, but while in 2018 the cool “new” thing to be aware of will be Other Transactions, by 2019, you’ll be hearing of 10 USC 2373 just as much.
Hey! Why are you still reading? Go get ’em!
What has been will be again,
what has been done will be done again;
there is nothing new under the sun.
c 2018 Lorna Tedder
Effective 29 April 2019: Lead/Principal DoD Program Management and Agile Acquisition Subject Matter Expert at The Mitre Corporation
*NO LONGER ACCEPTING CONSULTING CLIENTS*
- Recently retired Contracting Officer, unlimited AFMC warrant 1991-2018; Rapid Acquisition Consultant, 2018-2019.
- Nationally recognized Innovation Thought Leader in Government acquisition
- Rapid acquisition teacher, both FAR and non-FAR based contracting
- Master brain-stormer and advisor to program offices across the DoD
- Expert in developing junior and mid-level personnel to become innovators in Government acquisition
- 3 decades of first-hand experience and success with Other Transactions, Oral Proposals, 10 USC 2373, Broad Agency Announcements, unique pricing arrangements, Price Based Acquisition, Award Without Discussion, streamlined source selections, multiple award IDIQs, UCAs, waivers, omnibus tool creation, Quick Reaction Capability teams, and strategic sourcing.
- Message me on LinkedIn.