Technology transfer and how a release decision is made

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1. The policy the rest of the chapter runs on

A defense article can be affordable, available and wanted, and still not be releasable. Release is a separate decision from price and schedule. It is taken by different people, and it happens before anything is offered.

The instruction behind it is DoD Instruction 2040.02, which the manual summarizes in a single clause. It "requires that the DoD treat dual-use and defense-related technology as valuable national security resources, to be protected and transferred only in pursuit of national security and foreign policy objectives" (SAMM C3.1.1).

Four objectives are named. Critical military technological advantages are preserved, transfers that could prove detrimental are controlled and limited, proliferation of weapons of mass destruction is prevented, and diversion of defense-related goods to terrorists is prevented (SAMM C3.1.1).

The same paragraph then argues the other way. Properly controlled sharing of defense technology is described as "a valuable way to ensure our allies and partners participate with the United States in future military operations", with weight given to interoperability and to the defense industrial base (SAMM C3.1.1).

The manual is explicit that both sides are weighed: "DoD will apply export control and other technology security policies and procedures in a way that balances economic and scientific interests with those of national security" (SAMM C3.1.1).

It is equally explicit about timing. "It is important that these considerations be taken into account prior to any commitment to disclose or release controlled defense-related information or technology" (SAMM C3.1.1).

2. The categories that pull an item into review

The manual defines six categories of controlled material. They are worth knowing by name, because a program can contain several of them at once and each carries a different approval route.

• Classified information. Official information determined under Executive Order 13526 to require protection in the interest of national security.
• Communications security. Measures taken to deny unauthorized persons information derived from government telecommunications relating to national security.
• Controlled cryptographic item. An unclassified but controlled telecommunications or information handling device, or an associated cryptographic component.
• Controlled unclassified information. Information requiring safeguarding or dissemination controls under law, regulation or government-wide policy, excluding classified material.
• Critical program information. Defined as "U.S. capability elements that contribute to the warfighters' technical advantage, which if compromised, undermines U.S. military preeminence".
• Foreign government information. Information provided by another government, or produced jointly with one, on the expectation that it is held in confidence.

Two of those definitions reach further than most suppliers expect. Critical program information may sit in software algorithms, and it may sit in training or maintenance support equipment rather than in the end item (SAMM Table C3.T1). Hardware can be unclassified while the manual that keeps it running is not.

3. Where the review sits against the case timeline

The manual places specific releasability review and approval requirements ahead of congressional notification, for those cases that require it (SAMM C3.1.1.1). The sequence and thresholds of that notification are set out in congressional notification and what it is for.

One sentence fixes the consequence for the offer document itself: "The Letter of Offer and Acceptance (LOA) must reflect the approval requirements prior to offer" (SAMM C3.1.1.1). A release that has not been obtained cannot be papered over later in the case. How the offer document is assembled is covered in how a case is built.

4. Starting the review before there is a request

Release processes are slow, and a partner that waits for them can lose a competition. The manual therefore provides a route to begin them before any formal request exists.

The trigger is a sales forecast entry in the top two categories, or a credible demand signal, which the manual defines as written or verbal statements from senior procurement officials (SAMM C3.1.2). The embassy security cooperation office then discusses whether to develop a Pre-Letter of Request Assessment Request.

The status of that document is unusual. "A PAR serves in place of an LOR and Country Team Assessment (CTA) as grounds for the IA to initiate applicable foreign disclosure and technology security release processes" (SAMM C3.1.2). It is prepared in consultation with the implementing agency and its foreign disclosure office, then forwarded to the combatant command.

The command has to sign up to it. "As the PAR is an extraordinary process, a CCMD endorsement is required in each case to support initiation of the TSFD release processes" (SAMM C3.1.2.1).

The manual also closes off the obvious workaround. Security cooperation offices are told to "discourage partners from submitting LORs solely to begin TSFD processes prior to a partner being ready to move forward with a purchase", and a request filed for that reason may be disapproved in favor of a PAR (SAMM C3.1.2). The document is single purpose: "Note that the PAR cannot be used as an LOR for any other purpose" (SAMM C3.1.2).

5. What the assessment has to establish

Eighteen elements are required. They fall into five groups, and only the first is about the equipment.

• Requirement and configuration. The military requirement, the performance characteristics sought, and any departure from the standard United States configuration, with a reason.
• Capacity to absorb. Whether the recipient has the financial, educational and doctrinal resources to purchase, maintain, employ and sustain the system as intended.
• Regional effect. Whether this is the first introduction of the capability to the country or the region, the anticipated reaction of neighbors, and the effect on relative military strengths.
• Ability to protect it. The maintenance concept, the level of repairable stocks, and an assessment of the ability to account for, safeguard, operate, maintain, sustain and support the articles.
• Standing arrangements. Whether the recipient holds a general security agreement, an interoperability agreement, or a comparable instrument.

Two elements are worth singling out. Quantity has to be justified, with an explanation of "how the quantity endorsed is the minimum required consistent with the legitimate military requirements of the recipient". And the assessment asks about "defense trade relations with potential adversaries of the United States" (SAMM Table C3.T2).

A monitoring plan is also required at this stage, together with the compliance verification approach of the security cooperation office. What that plan turns into after delivery is described in what end use monitoring is.

6. What it means for a supplier

A configuration that has not been released cannot be marketed as though it has. The disclosure rules on that point are set out in disclosure of classified military information.

The practical reading is that the technical answer and the release answer are produced by separate processes on separate clocks. A program plan that assumes the second follows the first is usually a program plan that slips.

Key terms

TSFD	Technology security and foreign disclosure, the interagency release determination process. SAMM C3.1.2.
PAR	Pre-Letter of Request Assessment Request, used to begin release processes before a formal request exists.
CPI	Critical program information, the capability elements whose compromise would undermine military preeminence.
CUI	Controlled unclassified information, which requires safeguarding without being classified.
FGI	Foreign government information, held in confidence on the terms the providing government set.

Every statement above links to the document behind it. The full source list for this piece is on the sources page.

This page describes public United States government programs for general information. It is not legal, regulatory or procurement advice, and it does not address the facts of any particular case.

How Sentfore supports this

Release decisions are made a long way upstream of delivery, and they set what can be supported in country later. Sentfore works at the delivery end of defense programs in difficult environments, providing secure movement, protective security, facilities and life support. Its principals have worked on overseas defense and security programs. Requirements can be sent through the contact page.