July 1, 1976
Page 21984
Mr. CULVER. In other words, Mr. President, is the Senator from Georgia saying that the Congress will ultimately determine whether military equipment is to be purchased, and that we would have an opportunity to question the adequacy of the procurement procedures which may be followed?
Mr. NUNN. The Senator is eminently correct on that point. I am sure Congress will continue to carefully review the procurement of weapons, whether made here or abroad. But the purpose of these provisions and the purpose of the conference report is very clear: to clarify and, if anything, broaden the existing authority under the Buy American Act of the Secretary of Defense to move toward standardization and interoperability of weapons systems in NATO.
Mr. CULVER. Mr. President, will the Senator please describe section 802 by component?
Mr. NUNN. I would like to provide a more detailed description of the significance and meaning of this section. First, it makes it the policy of the United States that equipment procured for the use of U.S. military personnel stationed in Europe, under the terms of the NATO Treaty, should be standardized or at least interoperable with the equipment of our other Allies in NATO. That means that interoperability of equipment with our Allies is a goal and a criteria upon which equipment should be judged, much the same as the range or speed or destructive force or other criteria.
Second, this section states that the Secretary of Defense should initiate and carry out procedures that provide for the acquisition of equipment which is standardized and interoperable with the equipment of our NATO Allies. That means the Defense Department is meant to take NATO standardization seriously. Further, it means that in the day to day procurement and acquisition processes that NATO standardization should be a major consideration and not just an afterthought. It does no good to spend years designing and building equipment and then consider NATO standardization once the equipment is all complete.
Third, at the insistence of the House conferees, a section was added which requires the Secretary of Defense to take into account the costs, function, cost functions, quality and availability of equipment to be procured. This is just commonsense and we would expect the Secretary of Defense to use his good judgment on all these matters.
Finally, this section requires a report to Congress on the full details of the matter and substance of any and all agreements entered into between the United States and its NATO Allies providing for the acquisition of equipment manufactured outside the United States as a quid pro quo for the purchase of equipment in the United States by the NATO Allies. This report covers all equipment authorized in Title I of this conference report and is due within 30 days of enactment.
Perhaps the most significant section of this bill psychologically and in relation to our NATO Allies is the one relating to the so-called Buy American Act. Its purpose is to broaden and more clearly relate the "Buy American Act" to NATO. This section expressly, in law, authorizes the Secretary of Defense to waive the "Buy American Act" for purposes of carrying out the policy of NATO standardization. Although we certainly expect the Secretary of Defense to use his good judgment relating to the cost, function, quality and availability of equipment during the acquisition process, there are no strings in the authority for him to waive the "Buy American Act" in the law. That is really no different than the current provisions already in the "Buy American Act." These provisions allow the Secretary of Defense to waive the "Buy American Act" by simply finding that purchase of equipment in the United States is inconsistent with the public interest.
This new provision, in a way, says that NATO standardization is very much in the U.S. public interest. I believe it is in the public interest militarily and economically. If we do not improve standardization with our NATO Allies, it will become increasingly expensive and difficult to meet the Warsaw Pact threat, which is all standardized with Soviet equipment. If we can get this "two-way street" working between Europe and the United States, both the United States and Europe will benefit economically in terms of business and jobs, since the total market for military equipment of all the NATO Allies is much greater than the individual market any one of the NATO Allies can offer.
Finally, this section requires a report by the Secretary of Defense of the initiation of procurement of any new major systems which are not standard or interoperable with our NATO Allies.
Mr. MUSKIE. Mr. President, will the Senator yield?
Mr. NUNN. I reserve the remainder of my time.
Mr. MUSKIE. How much time do I have, Mr. President?
The PRESIDING OFFICER. The Senator from Maine has 1 minute.
Mr. STENNIS. How much time do I have, Mr. President?
The PRESIDING OFFICER. The Senator from Mississippi has 3 minutes.
Mr. STENNIS. I yield my time to the Senator from Maine.
Mr. MUSKIE. I listened to this colloquy with great interest. I am interested in the particular application as well as the broad policy of procurement. I am sure from the colloquy I just heard, and I do not know what the insert for the record is, as to whether or not there are left in doubt or settled in a reasonable way from my point of view two points: The first point, the standardization policy, as I understood from an earlier colloquy on the floor, spelled out in this bill applies prospectively and not retroactively.
Mr. NUNN. In answer to the question of the Senator from Maine, the previous colloquy we had on the floor has not been changed by the conference. It is the intention that this would apply in the future. But I would also have to make it clear that nothing in the conference was done to diminish existing authority of the Secretary of Defense in the areas of standardization and the waiver of the "Buy American Act."
Mr. MUSKIE. The point I want to make about that is in this bill you undertake to be more specific about defining the standardization policy than was so under current policy. Under current policy the definition of a lot of the competing interest is left to the courts or administrative action. This legislation would undertake to clear up what the authors of this legislation considered ambiguities, and they wanted to resolve them in favor of standardization.
All I am worried about is whether there is anything in the bill or anything in the colloquy which has a retroactive impact in a case that is now in the courts, where such definition of the policy is taking place under current law and not the policy stated in the bill. I do not want any retroactive implications from this bill.
Now, this may be a sound policy for the future. I have not studied it closely enough for that purpose and have remaining reservations on that point. But with current judicial proceedings underway I just want to be very certain there are no retroactive implications that could affect that proceeding or affect thedefinition of standardization policy in that proceeding.
Mr. NUNN. I would say in answer to the Senator's question, the Senator from Georgia understands that the law becomes effective when it is signed into law. It is prospective in nature.
Mr. MUSKIE. Mr. President, I am reassured by the remarks of my colleague from Georgia to the effect that this legislation will not affect the pending procurement of armor machine guns which has been the subject of so much controversy, the subject of protests to the General Accounting Office and civil action in the courts. The protest to the General Accounting Office is still pending but Judge Green, presiding in the U.S. District Court for the District of Columbia, this morning granted a preliminary injunction against the Department of Defense prohibiting them from taking any action to procure armor machine guns from the Belgian firm, Fabrique Nationale, until the Comptroller General rules on the allegations by Maremont Corp. and the Members of the Maine congressional delegation that the Army violated U.S. procurement laws and regulations in the competition between Maremont, the domestic manufacturers, and Fabrique Nationale, the Belgian competitor.
I have been troubled from the beginning by this procurement because of reports in the press that former Secretary of Defense Schlesinger entered into an agreement under which the United States Army would give favorable consideration to the Belgian machine gun to encourage Belgian purchase of our F-16 fighter aircraft. My concern remains despite assurances to the contrary by various Army spokesmen and I am convinced that only in the General Accounting Office review permitted by this court action will we obtain a full, fair and impartial ruling on this matter. I am particularly reassured to learn that after the General Accounting Office and the courts rule in favor of the domestic manufacturer, as I am confident they will, the Department of Defense or the Army cannot then look to this legislation and invoke a claim of standardization to waive the Buy America Act.
The General Accounting Office found in the report prepared on this procurement that purchase of the Mag 58 would not substantially contribute to standardization and in fact found that the Maremont M-60E2 would probably contribute more by dramatically improving standardization and interoperability within our own forces.
We have to remember that "standardization", although a somewhat ambiguous term, is not a carte blanche grant of discretion to the Secretary of Defense. Standardization is most meaningful when used as a cost savings to avoid duplicative research and development costs for new highly sophisticated weapons systems and offers little benefits to either the United States or our NATO allies in the areas of existing technology and existing manufacturing capacity.
I am concerned that this primary cost savings purpose be kept in mind as the Department of Defense moves to implement this policy and am pleased that the conferees added language requiring consideration of costs. I will be monitoring carefully DOD implementation of this policy from this perspective. I would be most chagrined to learn that the policy was being called on to permit foreign procurements of little or no cost savings benefit to the Department of Defense at the expense of existing domestic jobs and industries.
Mr. STENNIS. Mr. President, if I may add there, the Senator says nothing about it being retroactive, and it could not be unless it is spelled out.