The development of the Joint Simulation Environment (JSE) for the Lockheed Martin [LMT] F-35 fighter is not dependent on nine algorithms in a legal dispute before the Armed Services Board of Contract Appeals (ASBCA), the Pentagon said.

At issue is whether Lockheed Martin or the government funded the algorithms. In 2019, the Defense Contract Audit Agency ruled that Lockheed Martin did not develop the algorithms solely with its own funds and thus did not have data rights to the algorithms, and the company appealed the decision to ASBCA.

The case is before ASBCA Judge Elizabeth Witwer.

“We do not know when the appeal will be resolved as a hearing has not yet been scheduled before the [ASBCA],” DoD said in an email response to questions. “The administrative judge assigned to the appeal recently granted a motion to stay (or pause) the proceedings until the board rules on pending dispositive motions.”

Delays in the final 64 runs for JSE mean that F-35 initial operational test and evaluation will not end until next summer. The JSE is to replicate threats that high-tech adversary systems may pose to the F-35. Medium-fidelity simulators and high-fidelity Fighter-In-A-Box (FIAB) simulators are critical elements of the JSE.

The FIAB simulators are for operations in dawn, day, dusk and nighttime Out-The-Window visual scene conditions provided by a SpectraView 2.5 meter radius spherical display screen dome with the pilot’s eye point at the dome’s visual center. JSE testing for F-35s and sixth-generation fighters is to occur at Edwards AFB, Calif., and Nellis AFB, Nev.

The nine algorithms in question are for FIAB.

“F-35 JSE testing is not dependent on those nine algorithms,” DoD said in the email response to questions. “The JSE is making progress with validation, verification and accreditation activities, and is planning to execute the representative simulation mission trials in the summer of 2023, as the required final test events for Initial Operational Test and Evaluation.”

Defense Daily tried to reach Acting Assistant Secretary of Defense for Sustainment Steve Morani by phone and email but instead received the email responses from DoD, as the latter said Morani’s schedule would not accommodate an interview.

In November, 2019, U.S. Air Force Lt. Gen. Eric Fick, the head of the F-35 program, told Congress that Lockheed Martin declined to agree to allow the program government purpose rights to the nine algorithms. As a result, Fick said, the program negotiated “special license rights” as a substitute.

“The F-35 Joint Program Office and Lockheed Martin negotiated specialized license rights, which deviate from DFARS 252.227-7014, and restrict the Government’s ability to use, modify, reproduce, release, perform, display, or disclose nine Verification Simulation (VSim) software products Lockheed Martin asserts it developed exclusively at private expense,” according to the email response to questions from DoD.

“Government purpose rights” normally allow the government to use technical data and computer software within the government without restriction for five years and allow the government to release the tech data and software to third parties for government purposes, such as re-procurement, within that time period. Such “government purpose rights” typically revert to unlimited rights after that five-year period.

The Pentagon “is able to access Lockheed Martin-owned [F-35] data that it has ‘government purpose rights’ to,” DoD said in its email response. “However, technical data related to many of the components of the F-35 platform is owned by the OEM, not Lockheed Martin and as such, Lockheed Martin cannot provide access to that data.  The department has contractual rights to the technical data for some components; for those that the department does not have contractual rights to, the department is working either through Lockheed Martin or directly with the OEM to get access to the technical data the Department needs to support the F-35 sustainment enterprise.”

Beyond resolving data rights questions, Pentagon officials have said that future sustainment of the F-35 will require a mix of contractor maintenance and organic maintenance by the U.S. Air Force and Navy.

One option has been for the Air Force and Navy to spend about $500 million for the delivery of parts specifications from the subcontractors who build thousands of parts on the fighter. About a year ago, DoD charged Lockheed Martin with reaching out to F-35 subcontractors on the provision to the federal government of F-35 parts’ specifications. If that delivery happens, the government could compete the supply of parts, rather than relying on Lockheed Martin’s F-35 parts subcontractors.

Because the F-35 program has not been able to make that happen yet, DoD and the F-35 program have explored another option, under DoD’s Pathfinder initiative, to discover whether the F-35 program can avail itself of parts’ technical data specifications on other platforms at low-cost or for free.

“The F-35 Global Support Solution (GSS) is a combination of both organic and contractor logistics support, and we are currently executing a hybrid support strategy,” per the DoD email response to questions.

“First, in response to a Request for Proposal, Lockheed Martin and Pratt & Whitney [RTX] delivered proposals for delivery of provisioning and cataloging technical data to enable a transition to a government-managed supply chain,” DoD said. “The services are currently prioritizing the cost within their future budget requirements.  Second, the Organic Supply Chain Pathfinders is an [F-35 program] initiative that evaluates opportunities for the U.S. [military] services and Defense Logistics Agency to contract directly with Original Equipment Manufacturers to integrate designated subcomponents within their existing service/DLA contracts.  These pathfinders may provide an opportunity to acquire provisioning and cataloging data at lower or no cost. (Select) OEMs have expressed support of this ‘delayering’ initiative.  We are now evaluating the organic IT [information] solution needed to break out from the primes [prime contractors].”

DoD said that the Air Force, the Department of the Navy, and the F-35 program “have established processes to evaluate whether the cost of standing up a field-level repair capability is justified by the potential benefit to the warfighter.”

The Government Accountability Office (GAO) has said that F-35 life cycle costs will exceed $1.7 trillion despite DoD cost reduction efforts for the 400 aircraft fielded and the overall planned buy of 2,500–the largest of which is the Air Force’s planned buy of 1,763 F-35As (Defense Daily, May 19).

GAO said that “a strategic approach” by DoD could reduce F-35 sustainment costs by hundreds of millions or billions of dollars over several years.

The Air Force F-35A cost $7.8 million per aircraft per year to operate and maintain in 2020–$3.7 million more than the affordability target, according to the F-35 program. That represents $4.4 billion in extra costs projected out to 2036 when the Air Force will have bought 1,192 F-35As and is the largest cost overrun for the three variants of the plane. The Marine Corps’ F-35B and the Navy’s F-35C have smaller projected overruns, as the affordability targets in annual operating and sustainment costs are higher for those variants–$6.8 million per aircraft for the F-35B and $7.5 million per aircraft for the F-35C.

By 2036, projected operations and maintenance costs on the three F-35 variants will exceed affordability constraints by $6 billion, GAO said. Engines and spare parts have been two problem areas, which have caused F-35 mission capable rates to dip below 60 percent at times.

When asked whether the Pentagon may revise the F-35 sustainment contract to move to open competition to make F-35 spare parts, DoD demurred in its email response to questions but said that the fiscal 2021 to fiscal 2023 sustainment contract with Lockheed Martin “provides performance incentives that supports Full Mission Capable (FMC) objectives and gross issue effectiveness and customer wait time requirements for the F-35 enterprise.”

“The department collaborates with industry partners to support these readiness requirements by improving reliability and maintainability performance for key component degraders, providing spares, and enabling depot repair activations,” the Pentagon said.

News stories have often referred to the sustainment approach of the F-35 System Development and Demonstration (SDD) cost plus award fee contract as stemming from the 1990s-era Total System Performance Responsibility (TSPR) philosophy, which took heed of the fewer numbers of federal acquisition workers and the increasing complexity of weapons systems to permit companies to be responsible for weapons sustainment. Yet, when asked, neither DoD nor Lockheed Martin would release the specific data rights and TSPR contract language, and a key former DoD official has said that the F-35 sustainment contract did not wholly devolve system responsibility and data rights to Lockheed Martin.