Government Contracts Law as an Instrument of National Power: A Perspective from the Department of the Air Force

Abstract

Just as the law is increasingly recognized as an important instrument of national power, this article argues that government contracts law should also be recognized as such an instrument. Broadly construed, acquisition law encompasses a host of subjects that bear on national security. This discussion is divided into inward- and outward-facing components. Its inward-facing components are instrumental in nature because they serve as handmaidens to the military and other instruments of national power. Its outward-facing components are intrinsic in nature because various foreign policy tools, including foreign military sales (FMS), are governed by procurement law, making this component an instrument of national power in its own right. This article uses an example from Latin America to illustrate how U.S. laws that authorize, manage, and enforce the FMS program are used to give practical effect to standards of international law and thus to achieve national strategic objectives. It concludes by suggesting that the judge advocates in the Department of the Air Force who specialize in procurement law are perhaps undervalued.

Note: “©2022. Published in the Public Contract Law Journal, Vol. 51, No. 4, Summer 2022, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.”

Keywords: government contracts, public procurement, acquisitions law, defense procurement, national security, instruments of national power, military