As the government Test Director for GPE, am I free to test system requirements outside of the ATP mission-level tests since the contractor's system test plan says "will" and not "shall"?
Does the contractor get a vote in what can be evaluated during Government Performance Evaluation?
The short answer is it depends, but probably not.
The level of contractor involvement in Operational Test and Evaluation should have been explicitly stated and approved in the Test and Evaluation Master Plan (TEMP). It is fine for contractors to be involved in all aspects of T&E before Operational Test and Evaluation, but to assure impartiality, contractors are generally precluded from participation in OT&E. Exceptions might include situations where the contractor is expected to play some ongoing role in the operations and/or support of the system.
From the DOT&E TEMP Guidebook, Section 3.6 Operational Evaluation Approach, Paragraph 3.6.2 Test Limitations: “Indicate if any system contractor involvement or support is required (for Operational Test and Evaluation), the nature of that support, and steps taken to ensure the impartiality of the contractor providing the support according to Title 10 U.S.C. §2399.”
Relevant excerpt form 10 USC:
10 U.S. Code § 2399 - Operational test and evaluation of defense acquisition programs
(d) Impartiality of Contractor Testing Personnel.— In the case of a major defense acquisition program (as defined in subsection (a)(2)), no person employed by the contractor for the system being tested may be involved in the conduct of the operational test and evaluation required under subsection (a). The limitation in the preceding sentence does not apply to the extent that the Secretary of Defense plans for persons employed by that contractor to be involved in the operation, maintenance, and support of the system being tested when the system is deployed in combat.
(e) Impartial Contracted Advisory and Assistance Services.—
(1) The Director may not contract with any person for advisory and assistance services with regard to the test and evaluation of a system if that person participated in (or is participating in) the development, production, or testing of such system for a military department or Defense Agency (or for another contractor of the Department of Defense).
(2) The Director may waive the limitation under paragraph (1) in any case if the Director determines in writing that sufficient steps have been taken to ensure the impartiality of the contractor in providing the services. The Inspector General of the Department of Defense shall review each such waiver and shall include in the Inspector General’s semi-annual report an assessment of those waivers made since the last such report.
(A) A contractor that has participated in (or is participating in) the development, production, or testing of a system for a military department or Defense Agency (or for another contractor of the Department of Defense) may not be involved (in any way) in the establishment of criteria for data collection, performance assessment, or evaluation activities for the operational test and evaluation.
(B) The limitation in subparagraph (A) does not apply to a contractor that has participated in such development, production, or testing solely in testing for the Federal Government.
Full text of 10 USC 2399 can be found here: http://www.law.cornell.edu/uscode/text/10/2399
The language about “the Director may not…” and “the Director may waive…” has to do with support contractors used to provide specific technical expertise related to system effectiveness, suitability, etc. That is people working with the Government team to set criteria and determine system performance against that criteria as related to Operational Effectiveness and Suitability.
So, the program could have explicitly identified what the contractor involvement would be and how impartiality would be assured in the TEMP and had that document staffed, approved and signed at the appropriate level. That documentation would then be justification for contractor involvement in the conduct, analysis, scoring and/or reporting of OT&E events. Without that explicit a priori documentation, contractors involved in the development, production, or testing of the system should be prohibited from participating in the conduct of the operational test and evaluation or be involved (in any way) in the establishment of criteria for data collection, performance assessment, or evaluation activities for the operational test and evaluation.
Beyond the law and TEMP guidance to your specific question... Since you do not have a TEMP, one could argue that the principles outlined in the 10 USC 2399 apply. As the Government Test Director, you do have latitude in what you test. You might not be able to use information, other than that identified in the contract (and therefore in the approved ATP), to determine whether the item meets or does not meet acceptance criteria. If the system meets all the criteria set forth in the mission-level Acceptance Test Procedures the team would be hard pressed not to sign the DD250. On the other hand, OT&E has the purpose of providing information to determine Operational Effectiveness and Suitability. If the system does not perform some capability that is important to effectiveness and/or suitability, it is important to know that and determine some appropriate path forward. This might include development of some Techniques, Tactics and Procedures for using the system, identification of some Capabilities and Limitations, determining some need for Training or Documentation, etc.
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