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On June 29, 2023, the Government Accountability Office (GAO) released its second report[1] on Department of Defense (DoD) artificial intelligence (AI) acquisition efforts.  This latest report examines the DoD’s lack of formal AI acquisition guidance and identifies key principles from the private sector that can be applied to the DoD’s AI acquisition efforts. 

Although the DoD has designated AI as a top modernization priority and continues to allocate considerable spending to develop AI tools and capabilities (e.g., $1.1 billion in fiscal year 2023), the GAO found that the DoD has not yet issued department-wide guidance for AI acquisitions or solidified plans to develop such guidance.  The GAO similarly found that although various military services and DoD components have developed their own informal AI acquisition resources, none have issued service-specific implementing guidance. 

  • For example, the Air Force co-published an AI Acquisition Guidebook with the Massachusetts Institute of Technology in 2022; the Defense Innovation Unit created several AI worksheets to help developers align their AI projects with the DoD’s ethical AI principles; and the Office of the Chief Digital and AI Officer developed the Tradewind AI Projects User Guide to assist DoD personnel with AI acquisitions. However, these resources are “informal and internal documents that . . . do not constitute guidance that establishes component-wide policy.”

The GAO also analyzed responses provided by 13 private companies to identify key factors that the private sector considers when acquiring AI capabilities.  The GAO ultimately identified 31 unique factors that companies consider and grouped these into five categories: (i) understanding mission needs; (ii) making a business case; (iii) tailoring contracting approach; (iv) testing and evaluating proposed solutions; and (v) planning future efforts.

The GAO makes four recommendations in its report.  First, the GAO recommends that the DoD prioritize establishing department-wide AI acquisition guidance, including leveraging the key private sector factors identified in the report.  After the DoD issues department-wide guidance, the GAO recommends that the Army, Navy, and Air Force establish service-specific guidance that includes oversight processes and clear goals for AI acquisitions.  Without such guidance, the GAO warns that the DoD “is at risk of expending funds on AI technologies that do not consistently address the unique challenges associated with AI and are not tailored to each service’s specific needs.”

Contractors should be on the lookout for DoD AI acquisition guidance in the near future as DoD’s approach may provide key factors to consider when acquiring or selling AI capabilities.  C&M continues to monitor these developments. 

[1] Senate Report 116-236, which accompanied the National Defense Authorization Act for Fiscal Year 2021, requires the GAO to continuously monitor and report on the DoD’s AI-related efforts. The GAO released its first report in response to that provision in February 2022.

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Photo of Laura J. Mitchell Baker Laura J. Mitchell Baker

Laura J. Mitchell Baker is a counsel with Crowell & Moring’s Government Contracts Group in the firm’s Washington, D.C. office.

Laura represents government contractors in litigation and administrative matters, including contract disputes with state and federal entities, suspension and debarment proceedings, mandatory disclosures…

Laura J. Mitchell Baker is a counsel with Crowell & Moring’s Government Contracts Group in the firm’s Washington, D.C. office.

Laura represents government contractors in litigation and administrative matters, including contract disputes with state and federal entities, suspension and debarment proceedings, mandatory disclosures to the government, prime-sub disputes, and False Claims Act investigations. Her practice also includes counseling on federal, state, and local government contracts, government contracts due diligence, and regulatory and compliance matters, as well as conducting internal investigations.

Photo of Michelle Coleman Michelle Coleman

Michelle D. Coleman is a counsel in the Government Contracts Group in Crowell & Moring’s Washington, D.C. office. Michelle advises clients from diverse industries in connection with contract disputes and other government contract matters, including Contract Disputes Act (CDA) claims and requests for…

Michelle D. Coleman is a counsel in the Government Contracts Group in Crowell & Moring’s Washington, D.C. office. Michelle advises clients from diverse industries in connection with contract disputes and other government contract matters, including Contract Disputes Act (CDA) claims and requests for equitable adjustments, fiscal law questions, prime-sub disputes, and bid protests.

Photo of Allison Skager Allison Skager

Allison Skager is an associate in Crowell & Moring’s Los Angeles office, where she is a member of the firm’s Government Contracts Group.

Allison’s practice covers a range of transactional and regulatory matters for both startups and mature companies, including government contractors, large…

Allison Skager is an associate in Crowell & Moring’s Los Angeles office, where she is a member of the firm’s Government Contracts Group.

Allison’s practice covers a range of transactional and regulatory matters for both startups and mature companies, including government contractors, large retailers, and developers of emerging technology. She performs due diligence for complex transactions involving government contractors, advises on regulatory compliance issues, and adds critical support on matters related to mergers and acquisitions, joint ventures, and private investments.

Photo of Zariah Altman Zariah Altman

Zariah helps clients with antitrust investigations, government contracts matters, including bid protests, and other complex and fast-paced disputes.

In her antitrust practice, Zariah provides counsel on a range of issues and agency actions, including investigations into company hiring practices, such as no-poach/non-solicitation. In…

Zariah helps clients with antitrust investigations, government contracts matters, including bid protests, and other complex and fast-paced disputes.

In her antitrust practice, Zariah provides counsel on a range of issues and agency actions, including investigations into company hiring practices, such as no-poach/non-solicitation. In addition, in the area of government contracts, she advises clients on agency submissions, state and federal regulatory compliance, including FOIA requests, and bid protests.

She received her J.D., cum laude, from Howard University School of Law and served as a senior articles editor for the Howard Law Journal. Zariah worked as a Henry Ramsey Dean’s Fellow for a legal writing professor and as a student attorney in Howard’s Reentry Clinic, where she represented clients with criminal records that were seeking to have their records sealed or to terminate their parole early.