Foreign Military Sales: DOD Should Take Additional Steps to Streamline Process for Assessing Potential Recovery of Certain Acquisition Costs

Under the Arms Export Control Act and its implementing regulations, DOD is required to recover nonrecurring costs—unique one-time program-wide expenditures—for certain major defense equipment sold under the FMS program. These costs include research, development, and one-time production costs, such as expenses for testing equipment. The Act also permits those costs to be waived under certain circumstances, such as to standardize equipment with select allies or to avoid a loss of sale.

GAO was asked to review DOD's use of nonrecurring cost waivers. This report addresses the (1) nonrecurring cost waivers approved by DOD from fiscal years 2012 through 2017, (2) factors DOD considers when reviewing waivers, and (3) efficiency of the waiver review process.

To conduct this work, GAO analyzed DOD data of nonrecurring cost waivers for fiscal years 2012 through 2017, the most recent and complete data, to identify the value of waivers. GAO then reviewed a non-generalizable sample of 24 of these waivers that included a mix of justifications and geographic regions. GAO reviewed relevant DOD policy and interviewed DOD officials about the process to assess these waivers.

In the past 6 years, the Department of Defense (DOD) approved waivers valued at nearly $16 billion that it might otherwise have collected from foreign governments as part of its sales of major defense equipment through the Foreign Military Sales (FMS) program. The Arms Export Control Act, as delegated, authorizes the Defense Security Cooperation Agency (DSCA) within DOD to waive nonrecurring costs under certain circumstances, such as to standardize equipment with allies. From fiscal years 2012 through 2017, DSCA reviewed 813 waivers and denied 3, resulting in an approval rate of 99 percent. As shown in the figure below, the value of approved waivers significantly increased to nearly $6 billion last year, which is due to 2 waivers totaling nearly $3.5 billion for sales of missiles and related support systems.

Total Value of Approved Foreign Military Sales Nonrecurring Cost Waivers from Fiscal Years 2012 through 2017

When reviewing waivers, DSCA considers foreign policy and national security factors, such as interoperability with allies, and economic factors, such as support for the U.S. defense industrial base. Agency officials stated that approving waivers helps ensure sales go through and such broader benefits are realized. DSCA's practice to approve waivers is consistent with the authority it has been delegated under the Arms Export Control Act and is influenced by these benefits.

The process DOD has established to consider waivers is, at times, inefficient and repetitive. DSCA has final approval authority; however, multiple DOD offices must review and provide input on each waiver, with some offices reviewing waivers for the same purpose. Federal standards for internal control call for agencies to allocate resources and assign responsibilities to achieve efficiency and effectiveness. DOD has already taken steps to improve the efficiency of the waiver review process; for example, by reducing the time a few offices take to review the waivers. Nonrecurring cost waivers are one part of the larger FMS process, and continuing to streamline the waiver review process would better position DSCA and the military departments to identify opportunities to maximize efficiencies.

DSCA should continue to identify opportunities to streamline the waiver review process. DSCA concurred with GAO's recommendation.

The Department of Defense (DOD) invests billions of dollars to research,  develop, and produce defense equipment for weapons programs. Part of  DOD’s investment typically includes nonrecurring research, development,  test, evaluation, and production costs, such as DOD expenditures for  testing equipment. In cases where major defense equipment, which has  nonrecurring research and development costs greater than $50 million or  total production costs greater than $200 million, is sold to foreign  governments and international organizations through the Foreign Military  Sales (FMS) program, DOD is required under the Arms Export Control  Act and its implementing regulations to recover nonrecurring costs. For  fiscal years 2012 through 2017, DOD reported sales under the FMS  program totaling over $250 billion. These sales, which include major  defense equipment, create the potential for DOD to charge and recover  billions of dollars of nonrecurring costs from foreign governments. The  Arms Export Control Act, as delegated, also authorizes DOD to waive  collection of nonrecurring costs based on one of three primary  justifications: (1) to standardize U.S. military equipment with the North  Atlantic Treaty Organization (NATO) and select U.S. allies, (2) to achieve  cost savings for the U.S. government, or (3) to avoid a loss of sale.

Within DOD, the Defense Security Cooperation Agency (DSCA) is  principally responsible for overseeing and administering the FMS  program. In recent years, we have made recommendations to address  concerns about timeliness and other program management functions  within the FMS program. In light of these recommendations and ongoing  congressional oversight, DSCA has undertaken a number of initiatives  aimed at enhancing the FMS program. For example, DSCA adopted  digital signatures to help improve timeliness after examining its process  for reviewing requests from foreign governments to waive nonrecurring  costs.

You asked us to review DOD’s use of its authority to waive nonrecurring  costs. This report addresses the (1) nonrecurring cost waivers approved  by DOD from fiscal years 2012 through 2017, (2) factors DOD considers  when reviewing waivers, and (3) efficiency of the waiver review process.

To address our objectives, we reviewed DSCA data on FMS nonrecurring  cost waivers requested by foreign governments from fiscal years 2012  through 2017, the years for which data are the most complete. To  determine the nonrecurring cost waivers approved by DOD during this  time frame, we analyzed the data to determine the number and dollar  value of waivers requested and approved by fiscal year and geographic  region. We also analyzed the data to determine the number of waivers  that were denied. Due to certain data limitations, we were unable to  determine the percentage of all eligible sales that included a waiver  request and the total amount of nonrecurring costs that DOD actually  waived after the waiver was approved and the sale was finalized. To  assess the reliability of the data, we compared them to waiver  documentation we obtained from DSCA and interviewed DSCA officials  responsible for the data. Based on these steps, we determined the data  were sufficiently reliable for the purposes of our reporting objectives.

To determine the factors that DOD considers when reviewing waiver  requests, we selected a non-generalizable sample of 24 waiver requests  to identify the information the foreign government submitted as part of the  request. The sample included a mix of waiver justifications and  geographic regions. After reviewing the waiver requests, we interviewed  officials from the military departments—Air Force, Army, and Navy—to  discuss them. We also interviewed officials from DSCA, the Office of the  Undersecretary of Defense (OUSD) Comptroller, OUSD for Policy, and  OUSD for Acquisition, Technology, and Logistics (AT&L) to discuss the  factors they consider when reviewing nonrecurring cost waiver requests.

To determine the efficiency of the waiver review process, we identified  offices that review waiver requests for the same or similar information and  reviewed the 24 waiver requests to identify the steps taken by these  offices during the review. In addition, we reviewed relevant DOD policy  and interviewed officials from all of the offices involved in the waiver  process to discuss the steps they take during their review. We compared  these offices’ practices for reviewing the waivers with the Standards for  Internal Control in the Federal Government, which calls for agencies to  assign and delegate responsibilities in a manner that maximizes  efficiency and effectiveness. Appendix I contains additional detail on our  objectives, scope, and methodology.

We conducted this performance audit from March 2017 to January 2018  in accordance with generally accepted government auditing standards.  Those standards require that we plan and perform the audit to obtain  sufficient, appropriate evidence to provide a reasonable basis for our  findings and conclusions based on our audit objectives. We believe that  the evidence obtained provides a reasonable basis for our findings and  conclusions based on our audit objectives.

The Arms Export Control Act of 1976 gives the President authority to sell  defense articles and services to eligible foreign governments and  international organizations. This Act is the basis of the FMS program,  which the U.S. government considers to be an integral component of U.S.  national security and foreign policy. Under the FMS program, foreign  governments pay the U.S. government to administer the acquisition of  defense articles and services on their behalf. Typically, defense  equipment made available for transfer or sale to foreign governments falls  under an acquisition program managed by one or more of the U.S.  military departments. Generally, this equipment has gone through  operational testing and has entered or is entering full-rate production.

Multiple federal entities have a role in the FMS program, including DOD  and the Department of State (State). Within DOD, DSCA and the military  departments play an extensive role in administering the program and  managing FMS acquisitions, respectively. DSCA carries out key  administrative functions, such as coordinating the development and  execution of sales through the FMS program and conducting negotiations  with foreign governments. The military departments are involved early in  the development of the potential sale when the foreign government  identifies the defense equipment it needs to buy to achieve a desired  capability. Congressional oversight of the FMS program has resulted in  amendments to the Arms Export Control Act and other relevant legislation  to improve the FMS program.

The first phase of the FMS process generally involves a foreign  government submitting a request, usually to State or DOD, to express  interest in purchasing defense articles or services. Depending on the size  and complexity of the items being purchased and the foreign  government’s available budget, the process to finalize the terms of a sale  can take from a few days to years. In response to concerns that the FMS  process is slow and burdensome, Congress has increased oversight of  the program and recently passed legislation intended to improve the  timeliness of the FMS process. For example, in the National Defense  Authorization Act for Fiscal Year 2017, Congress required DOD to revise  its acquisition regulations to place new requirements on FMS contracting  and to establish a pilot program to seek ways to accelerate contracting  and pricing processes for FMS.

According to DSCA officials, foreign governments interested in having  nonrecurring costs waived must request a waiver before DOD develops  and sends the sales agreement to the foreign government for acceptance  and signature. The sales agreement—formally referred to as a letter of  offer and acceptance—details the specific items, quantities, and total  estimated costs, among other things. The sales agreement, once signed,  is commonly referred to as a FMS case. For a given FMS case, DSCA’s  decision regarding whether or not to waive nonrecurring costs would also  be articulated in the agreement.

Consistent with the Arms Export Control Act and DOD policy, foreign  governments may request that nonrecurring costs be waived based on  one of three justifications:

To achieve equipment standardization with NATO and select allies  (Australia, Israel, Japan, Jordan, New Zealand, and the Republic of  Korea). In addition to NATO itself, there are currently 34 countries that  qualify for the equipment standardization waiver justification, as  shown in figure 1.

To avoid a potential loss of sale that could likely result from imposing  nonrecurring costs.

To obtain cost savings through economies of scale on major defense  equipment also procured for the U.S. military that substantially offsets  the revenue that will be lost if the nonrecurring costs are waived.

The Code of Federal Regulations states that all waiver requests should  originate with the foreign government and must specify the reasons or  justifications for the requests. A foreign government generally initiates the  process by submitting a written request to waive the nonrecurring costs  for the major defense equipment it plans to purchase. For example, a  NATO member country planning to purchase P-8A patrol aircraft would  submit a request to waive nonrecurring costs for that equipment to the  Navy, stating that the purchase would promote equipment  standardization.

The letter of offer and acceptance the military department sends to the  foreign government states the estimated costs and the quantity of major  defense equipment for which nonrecurring costs will be waived. Once the  letter of offer and acceptance has been signed by the foreign  government, any increase in the quantity of items requires that the foreign  government submit a request to waive nonrecurring costs for the  additional equipment. If equipment quantities are reduced after the waiver  is approved, the total amount of nonrecurring costs waived will be less  than the value at the time the waiver was approved. For example, in  2013, DSCA approved a waiver for up to $799 million in nonrecurring  costs for 768 Patriot missiles. However, the foreign government reduced  its planned procurement to 248 missiles. As of December 2017, DSCA  estimated that the amount of nonrecurring costs that will be waived  decreased to $258 million—about two-thirds less than was originally  approved.

Congressional and DOD Actions Regarding Nonrecurring Costs

The laws, regulations, and policies regarding nonrecurring costs have  been revised several times over the past 50 years. DOD has had a  process in place to recover nonrecurring research and development and  production costs on sales of major defense equipment to foreign  governments and international organizations since 1967. The requirement  to recover a proportionate amount of these costs was codified in the Arms  Export Control Act of 1976, which authorizes arms sales in furtherance of  U.S. security objectives. Significant legal, regulatory, and policy changes  regarding the justifications that can be used to waive nonrecurring costs  are summarized in figure 2.

Determining Nonrecurring Costs for Sales of Major Defense Equipment under the FMS Program

The Arms Export Control Act requires recovery of a proportionate amount  of nonrecurring research, development, and production costs for foreign  sales of major defense equipment. For example, in the F-35 Joint Strike  Fighter program, costs for production testing and tooling equipment are  considered nonrecurring costs. The military departments, as delegated  under the Code of Federal Regulations, are responsible for determining  the per-unit nonrecurring cost for each type of major defense  equipment. In practice, DOD components submit requests to establish  nonrecurring costs to DSCA, which—if approved by DSCA—are made  publicly available on the agency’s website.

In practice, determining what nonrecurring costs will be charged entails  the following steps:  1.  Charges are calculated by dividing total program nonrecurring costs  by the total number of planned production units. For example, the Air  Force determined that the nonrecurring costs for a sensor program  were $660 million and estimated that a total of 250,000 units would be  procured by DOD and from sales under the FMS program. Based on  these estimates, the Air Force calculated a nonrecurring cost charge  of $2,640 per unit.  2.  For each individual FMS case that includes major defense equipment,  the military department calculates the amount of nonrecurring costs  for the sale by multiplying the quantity of items by the per-unit  nonrecurring cost charge. For instance, in the example described  above, if a foreign government wants to purchase 10 sensors, a  nonrecurring cost charge of $26,400 would be added as part of the  sale.

Roles and Responsibilities of DOD Offices in Reviewing Nonrecurring Cost Waiver Requests

DOD policy requires that waivers also be reviewed on a case-by-case  basis and tied to a specific sale that defines the quantities of each item to  be procured. This policy prohibits blanket waivers, those that would waive  nonrecurring costs on all sales to a particular country or all sales  pertaining to specific equipment. For example, DSCA cannot grant a  blanket waiver for the Patriot missile that would automatically waive  nonrecurring costs on all subsequent sales of that missile.

Within DOD, the Director of DSCA has been delegated authority to waive  nonrecurring costs for sales of major defense equipment to foreign  governments and international organizations. While DSCA has primary  responsibility for determining whether waiver requests meet all legal and  regulatory criteria, we observed that multiple DOD offices are involved in  the waiver review process, as illustrated in figure 3.

In practice, the military departments receive waiver requests from a  foreign government or international organization and ensure that all  required information is submitted, including the equipment type and  quantity, as well as the justification for the waiver. Based on this  information, the military department determines whether or not to endorse  the waiver request. The military department then compiles a package of  relevant documentation, including calculation of the estimated total  amount of nonrecurring costs to be waived, the original waiver request,  and a memo documenting its decision regarding the waiver request. In  the course of our work, we found that, within each military department,  the offices involved in the waiver review process include:

The U.S. Army Security Assistance Command, which initially reviews  the waiver request, and the Office of the Deputy Assistant Secretary  of the Army for Defense Exports and Cooperation, which provides the  Army’s decision whether to endorse the waiver request;

The Navy International Program Office, which reviews the waiver  request and provides the Navy’s decision whether to endorse the  waiver request; and

The Air Force Security Assistance and Cooperation Directorate, which  initially reviews the waiver request, and the Office of the Secretary of  the Air Force, International Affairs, which provides the Air Force’s  decision whether to endorse the waiver request.

Apart from DSCA, all waiver requests are reviewed by the OUSD (AT&L)  and OUSD (Comptroller), while the OUSD for Policy only reviews waivers  that cite the loss of sale justification.

DOD Approved Nonrecurring Cost Waivers Valued at Billions of Dollars over the Past 6 Years

From fiscal years 2012 through 2017, DOD approved nonrecurring cost  waivers valued at nearly $16 billion that it might otherwise have collected  from foreign governments as part of its major defense equipment sales.  Over this period, DSCA approved 810 of the 813 waiver requests it  received, resulting in an approval rate of more than 99 percent. However,  the dollar value of the approved waivers does not, in all instances, reflect  the total amount that will ultimately be waived once sales are finalized.  Rather, it reflects a ceiling for the nonrecurring costs that DOD could  waive. During this time frame, DSCA collected $106 million in  nonrecurring costs; however, this amount may be associated with FMS  cases prior to fiscal year 2012. We were not able to determine the exact  amount actually waived once sales agreements were finalized due to data  limitations.

DOD Approved Nearly All Requested Nonrecurring Cost Waivers

From fiscal years 2012 through 2017, DOD approved 99 percent of the  813 nonrecurring cost waiver requests for major defense equipment sold  through the FMS program. In our analysis of DSCA’s data on waivers  requested for the 6-year period, we found that:

DOD approved all 471 waiver requests that cited equipment  standardization submitted by 25 countries and NATO, totaling  approximately $6.7 billion.

DOD approved all but 2 of the 340 waiver requests that cited loss of sale submitted by 34 countries, totaling almost $9.2 billion.

DOD also approved a waiver of $460,000 for one of the two cost savings waiver requests it received.

In total, these approved nonrecurring cost waivers amounted to nearly  $16 billion over the past 6 years. The value of approved waivers  increased more in fiscal year 2017 than in prior years, as shown in figure  4. The increase is primarily due to 2 approved waivers totaling nearly $3.5 billion for sales of missiles and related support systems.

From fiscal years 2012 through 2017, approximately 93 percent of  nonrecurring cost waivers were approved for countries in Europe, the  Middle East, and the Pacific region. Based on our review of data obtained  from DSCA, we found that countries eligible for equipment  standardization waivers always cited this justification in their waiver  requests, with one exception. We found that only eligible countries  received a waiver for equipment standardization. All other countries that  did not qualify for equipment standardization submitted waiver requests  for loss of sale, except for 2 waiver requests that cited cost savings to the  U.S. government. As shown in figure 5, all countries that utilized the  equipment standardization justification are located in Europe and the  Pacific region, and nearly all the $9.2 billion approved loss of sale waivers  were for countries in the Middle East.

Various Factors Limit Insight about the Extent of Total Nonrecurring Costs DOD Waived and Collected

Currently, DSCA uses the Defense Security Assistance Management  System (DSAMS) to maintain records on FMS case initiation and  execution, but an official stated the system was not designed to track  nonrecurring cost data, such as data on waivers requested or actual costs  waived, for each individual FMS case. DSCA uses separate methods for  tracking data on approved waivers and the equipment that was  purchased as part of an individual FMS case. DSCA officials stated that  to calculate the amount of nonrecurring costs actually waived for each  approved waiver, they manually review DSAMS records for individual  FMS cases to identify the planned quantity of items to be purchased.  While DSCA provided data on actual costs waived, we were unable to  independently verify these calculations and, as a result, are unable to  report on the actual costs waived for waivers that were approved for fiscal  years 2012 through 2017. Other complexities make it difficult to  conclusively determine how much has been waived, including:

Approved waivers do not have expiration dates but are tied to a  specific sale. DSCA officials stated that waivers are generally used  within 5 years, which coincides with the expiration date of the sales  agreement.

The lag time between when a waiver is approved and when the  amount of equipment is finalized can take years.

According to DSCA officials, nearly all nonrecurring costs are waived  rather than collected. Officials also noted that DSCA has collected  approximately $106 million in nonrecurring costs for fiscal years 2012  through 2017; however; this amount may include costs collected from  FMS cases that were finalized prior to our time frame. DSCA officials  could not confirm whether the 813 waiver requests that they received  during fiscal years 2012 through 2017 represented the universe of all  sales eligible for waivers under the FMS program, as DSAMS does not  consistently track whether an individual FMS case includes major defense  equipment and therefore would be eligible for a waiver or subject to the  collection of nonrecurring costs. According to DSCA officials, foreign  governments rarely forego submitting waiver requests and, invariably,  submission of these requests is considered a standard practice. As a  result, with few exceptions, DSCA officials said that DOD waives nearly  all nonrecurring costs associated with eligible sales in the FMS program.

We have previously reported that DSCA has efforts underway to develop  a new system, the Security Cooperation Enterprise Solution, which is  expected to address longstanding information management challenges.  The new system is being developed with the goal of aggregating data  from multiple information management systems in order to provide  increased insight into the acquisition process, among other things. During  our current review, DSCA officials noted that the new system will include  requirements to incorporate nonrecurring cost data, but it is unclear  whether the system will automate reporting of nonrecurring costs actually  waived. We previously reported that the deployment schedule for the new  system has been delayed and is being revised. DSCA officials were  uncertain of a new deployment date as system requirements are currently  being re-validated and expected to continue through 2020.

DOD Considers Foreign Policy, National Security, and Economic Factors When Reviewing Waiver Requests

Our review found that DOD considers a variety of factors when reviewing  nonrecurring cost waiver requests, but, ultimately, the department wants  to ensure that sales are not jeopardized. Individually and collectively,  these sales complement various foreign policy, national security, and  economic objectives. The ability to waive nonrecurring costs assists in  keeping FMS competitive and ensuring sales are not jeopardized,  according to DSCA and other DOD officials.

While there is a decades-old requirement to recover the U.S.  government’s investment in the nonrecurring costs of major defense  equipment it develops and later sells to foreign governments, DOD is  authorized to waive collection of these costs, which it implements through  DSCA. Under the Arms Export Control Act and its implementing  regulations, DSCA has considerable latitude to approve all waivers that  meet the criteria for each justification. DSCA’s approval of nearly all  waivers is in accordance with statutory requirements. When reviewing  nonrecurring cost waiver requests, DSCA, consistent with DOD guidance,  factors the legal requirements for the justification cited for a waiver  request, in addition to broader benefits to achieve foreign policy, national  security, and economic objectives, which are interrelated. DOD offices  that play a role in reviewing and deciding on waiver requests may also  consider these factors.

Foreign policy and national security benefits: DSCA and other DOD  officials weigh the effect of equipment sales under the FMS program on  foreign policy and national security objectives. DSCA officials stated that  avoiding a potential lost sale is paramount and outweighs the benefits of  collecting nonrecurring costs, which may only be a small fraction of the  overall sale. DSCA officials added that if a waiver request is not  approved, U.S. relations with the foreign government could become  strained or otherwise be negatively affected. DSCA officials indicated that  one of the goals of the FMS program is to facilitate building and  maintaining international relationships. Further, officials added that  nonrecurring cost waivers help achieve that goal by making the FMS  program competitive.

The precedent for waiving nonrecurring costs has existed for decades,  and foreign governments know to request waivers and expect they will be  approved, according to DOD officials. In addition, Air Force officials stated  that foreign governments seek to negotiate the price when purchasing  U.S. defense equipment. DSCA officials stated that foreign governments  view the nonrecurring cost waivers as a way to realize some form of cost  savings when purchasing defense equipment under the FMS program.  DSCA officials stated that, regardless of the amount, waiving  nonrecurring costs can be viewed as significant because it gives the  appearance of the foreign government achieving some cost savings.

The U.S. National Military Strategy prioritizes increasing U.S.  interoperability with coalition partners. Sales of defense equipment to  U.S. allies are a means to achieve these interoperability goals. Equipment  standardization with NATO member countries and other select allies is  one of the available justifications for which a waiver can be requested and  approved. Interoperability helps strengthen relationships with allies and  advances U.S. and allied security interests in these regions. Navy officials  stated that increasing the capabilities available to U.S. allies through FMS  reduces the need to locate U.S. military forces and equipment in proximity  to these allies.

Economic benefits: Sales through the FMS program can result in cost  savings for the U.S. government, which is also one of the permissible  justifications in the Arms Export Control Act for foregoing collection of  nonrecurring costs. Both the U.S. and foreign governments can benefit  from economies of scale where increasing the volume of defense  equipment purchased decreases the cost per unit. Navy officials also  explained that they always consider the possibility of cost savings in sales  through the FMS program, and added that they coordinate their own  procurement plans with FMS purchases to achieve cost savings.  However, DSCA officials stated that the efforts to obtain required data  and conduct analysis to quantify the amount of cost savings are  extensive. As a result, this analysis is generally only performed when  required to justify cost savings waiver requests.

In addition to the potential for lower unit prices, the FMS program helps to  sustain the U.S. defense industrial base and allows it to remain globally  competitive. This level of competition has increased as NATO allies also  sell their military equipment. Navy officials stated there are always  competing items, since foreign governments can purchase more  equipment with less capability at a lower price from another country,  which can expand the foreign government’s buying power relative to what  it can afford when buying from the United States. In addition to competing  offers, budget constraints may pose a challenge for some foreign  governments seeking to purchase U.S. defense equipment and the added  expense of paying nonrecurring costs could threaten a potential sale.  DOD officials stated that risking a lost sale if a waiver is not approved  could have potentially negative effects for the U.S. companies that  manufacture defense equipment sold under the FMS program.  Specifically, DOD officials indicated that if the sale is lost, U.S. jobs and  economic viability could be affected, particularly because some FMS  cases can be valued at billions of dollars in equipment purchases.

DOD Could Take Steps to Enhance Efficiency of Waiver Review Process

DOD’s waiver review process is, at times, inefficient, includes repetitive  steps, and does not account for the value of the waiver request. Waiver  justifications are broadly defined in the Arms Export Control Act, which— as delegated—gives DSCA flexibility to determine how to review requests  and grant waivers. DSCA has implemented a review process that  involves up to 12 offices including the military departments, DSCA, and  various OUSD offices. In some cases, these offices are reviewing waivers  to verify similar information, at times leading to repetitive reviews. The  same process is applied despite the amount of nonrecurring costs  requested to be waived, complexity of the case, or ease (or difficulty) in  assessing the validity of the justification cited in the waiver request. DOD  has taken steps to reduce the time for a few offices to review waivers, but  we found there are opportunities for additional efficiencies to be realized.

For 23 of the 24 waiver requests we reviewed, on average, the military  departments determined whether to endorse requested waivers around  270 days after they were submitted by the foreign government. DSCA  then, on average, took less than 60 days to decide whether to approve  the waiver, which is consistent with its policy to respond to waiver  requests within 60 days of receipt. There is no policy regarding the time  frame for military departments to review a waiver request, as military  officials stated the review time can vary depending on whether additional  information must be obtained from the foreign government. However,  recognizing an opportunity to streamline the review process, DSCA has  worked with the Air Force to identify one office that did not add value,  reducing the Air Force review process from three offices to two. Officials  stated this action decreased the amount of time required for review.  DSCA officials also stated that they have improved their review times by  using digital signatures when concurring on waiver decisions. Our prior  work has indicated that concerns have been raised about the timeliness  of the FMS program, and a DSCA official stated that these efforts were  part of a DSCA initiative to increase efficiencies in the overall FMS  process.

Further, we found repetitive steps in the process for assessing potential  U.S. foreign policy and national security benefits from a sale where  equipment standardization is cited as the justification for the requested  waiver. These benefits are already assessed for certain FMS cases by an  in-country team that is comprised of officials from State and the relevant  DOD combatant command that manages military operations in  designated areas of responsibility. Once the waiver is requested by the  foreign government, DSCA and OUSD (AT&L) officials review the waiver  request to assess these benefits, even though military officials stated an  assessment has already been conducted to determine how the proposed  sale will advance U.S. national security objectives within the region. In  addition, DSCA officials stated that since foreign governments are  procuring equipment also used by the U.S. military, by default, purchasing  the equipment would result in standardization. After a potential sale has  received a favorable country team assessment, the only additional  requirement is to determine whether the customer is NATO or among the  34 countries eligible for the standardization waiver. Yet while this  requirement is easily confirmed, the waiver request may still be reviewed  by as many as 11 offices within the military department and DSCA, as  well as at the OUSD level.

However, we found, for example, DSCA did not adjust its review process  based on the value of the nonrecurring costs to be waived. In one case,  for a cost savings waiver request with estimated nonrecurring costs just  under $12,000, the Air Force took 112 days to coordinate its review and  endorsement of the waiver before submitting it to DSCA. DSCA then took  47 days to coordinate input from various OUSD offices to reach a final  decision on the requested waiver. Similarly, in another instance where the  value of the requested loss of sale waiver was substantially higher—$337  million—it took the Army 160 days to coordinate its review before passing  it on to DSCA, which took 29 days to finalize its decision. Other than  OUSD Policy’s review of the loss of sale waiver, both of these waiver  requests required the same review process despite the substantial  difference in costs.

For waiver requests that cite the loss of sale justification, DSCA and  military department officials told us that it is difficult to prove or disprove a  foreign government’s claim that not waiving nonrecurring costs will likely  lead to a loss of sale. DOD guidance states these waiver requests should  include information on competing items and their cost, if available;  however, the guidance does not specify the type of information or level of  detail that should be provided. DSCA officials stated that they interpret  this guidance to mean this information is optional and therefore not  required. According to DOD officials, a foreign government’s budget  constraints could limit its ability to pay nonrecurring costs. Of the 18 loss  of sale waiver requests that we reviewed, none included any additional  information on competing offers or spending limits, beyond the basic loss  of sale statement. Even if DOD received this type of information from the  foreign government, DSCA officials told us that corroborating this  information would be difficult. Therefore, DOD officials stated that they do  not assess the likelihood of loss of sale beyond the minimum criteria.  Although this assessment requires no additional analysis, loss of sale  waiver requests are subject to the same review process, but with OUSD  Policy as another required layer of review, bringing the possible total up  to 12 offices. DSCA and OUSD Policy officials were unsure of the origin  of the requirement for OUSD Policy to weigh in on waiver requests that  cite loss of sale. Further, OUSD Policy officials stated that they review  waiver requests for similar elements as other DOD entities, such as  whether the sale will support security objectives in the region.

DSCA officials have acknowledged that identifying further opportunities to  streamline waiver reviews through a risk-based approach could enhance  efficiencies in the FMS program. Federal standards for internal controls  state that agencies should assign and delegate responsibilities in a  manner that maximizes efficiency and effectiveness. In light of the  significant growth in the FMS program in recent years, as well as the  resulting workload for DSCA and other cognizant DOD components,  continuing to streamline the waiver review process would better position  DSCA and the military departments in maximizing efficiencies in the FMS  process.

The FMS program is a central component of U.S. foreign policy. Our work  has shown it enhances the capabilities of our allies, fosters  interoperability with foreign militaries, helps sustain our defense industrial  base, and serves our national security interests. In 1976, Congress  codified the requirement for DOD to recoup nonrecurring costs on sales  of major defense equipment to help ensure that FMS customers pay their  share of the full cost of this equipment. At the same time, Congress  provided for waiving nonrecurring costs for specified reasons. Over the  past 6 years, DOD has prioritized the benefits of the FMS program and  has typically waived rather than collected nonrecurring costs under these  specified reasons.

Within DOD, there are opportunities to consider streamlining the waiver  review process to eliminate efforts that are potentially repetitive or  inefficient. The review process for waiver requests requires that multiple  offices review all waiver requests, regardless of the amount of  nonrecurring costs to be waived or the complexity of the specific  circumstances. The FMS program has been criticized for being slow and  burdensome. To create efficiencies in the overall FMS program, DOD  could take additional steps to streamline the FMS waivers review  process.

We are making the following recommendation to DSCA:  The DSCA Director should continue to identify opportunities to streamline  the review process for nonrecurring cost waiver requests.  (Recommendation 1)

We provided a draft of this report to DOD for comment. In its comments,  reproduced in appendix II, DOD concurred with our recommendation.  DOD also provided technical comments, which we incorporated, as  appropriate.

We are sending copies of this report to the appropriate congressional  committees and the Secretary of Defense. In addition, the report is  available at no charge on the GAO website at http://www.gao.gov.

If you or your staff have any questions about this report, please contact  me at (202) 512-4841 or MakM@gao.gov. Contact points for our Offices  of Congressional Relations and Public Affairs may be found on the last  page of this report. GAO staff who made key contributions to this report  are listed in appendix III.

Appendix I: Objectives, Scope and Methodology

In this report, we addressed the (1) nonrecurring cost waivers approved  by the Department of Defense (DOD) from fiscal years 2012 through  2017, (2) factors DOD considers when reviewing waivers, and (3)  efficiency of the waiver review process.

To address all objectives, we analyzed data from the Defense Security  Cooperation Agency (DSCA) on requests made by foreign governments  to waive nonrecurring costs on purchases of major defense equipment  under the Foreign Military Sales (FMS) program. We reviewed data for  fiscal years 2012 through 2017, as these years provided the most  complete data available to facilitate our analysis and gain insights about  the waivers requested based on the three allowable justifications within  the scope of our review—equipment standardization, loss of sale  avoidance, and cost savings to the U.S. government. DSCA uses the  Defense Security Assistance Management System (DSAMS) to maintain  records on FMS case data from the time the case is initiated; however,  the system does not track nonrecurring cost data, such as data on  waivers requested or costs waived, for each individual FMS case.  Instead, DSCA provided a dataset on waivers requested that is  maintained in a spreadsheet. To assess the reliability of DSCA’s data, we  tested for missing data, inconsistent coding, and compared data on  selected waiver requests to waiver documentation we obtained from  DSCA. In reviewing the documentation relative to the dataset we  obtained, we found a small amount of data that were incorrectly coded,  but these miscodings had minimal potential to affect our analysis. DSCA  corrected these miscodings when we brought the errors to their attention.  Overall, we found that the documentation for the selected waiver requests  generally matched the data DSCA provided. We interviewed DSCA  officials responsible for the data to identify the quality controls in place to  ensure the data are accurate and reliable. Based on these steps, we  determined the data were sufficiently reliable to identify the extent to  which DOD approved nonrecurring cost waivers and to select a sample of  waiver requests to review.

To identify the extent to which DOD approved nonrecurring cost waivers  for fiscal years 2012 through 2017, we analyzed data on nonrecurring  cost waiver requests, which included: the country requesting the waiver,  the justification under which the waiver was requested, the requested  amount of the waiver, whether or not the waiver was approved, the  approved value of the waiver, and the military department responsible for  managing the procurement of the major defense equipment associated  with the requested waiver. We analyzed the data to determine the  number and dollar value of waivers requested for each waiver justification  in total and by fiscal year. We also analyzed the data to determine the  value of nonrecurring cost waivers approved by geographic region.

DSCA has various information management systems and methods to  track data related to FMS cases. However, these systems are not  integrated and data limitations precluded certain analysis:

A DSCA official stated that DSCA does not track which FMS cases  include major defense equipment, which impeded our ability to  conclusively report on the total universe of all eligible FMS cases  during fiscal years 2012 through 2017 for which a nonrecurring cost  waiver could have been requested, and the percentage of cases  represented by the 813 requested waivers. DSCA processes  thousands of FMS cases each year; however, not all FMS cases meet  the threshold for collecting or waiving nonrecurring costs as this  requirement only applies to FMS cases where major defense  equipment is being purchased. We interviewed DSCA officials to  obtain information on how major defense equipment is recorded in  DSAMS and the process they use to determine whether a FMS case  includes major defense equipment. To identify the universe of eligible  FMS cases would have required a manual review of thousands of  cases to match the nonrecurring cost waiver data that DSCA  maintains in a separate spreadsheet with the case data captured in  DSAMS that itemizes the equipment purchased for each individual  FMS case. Because a FMS case can have multiple waivers, there is  an added challenge to accurately match the waiver with the  corresponding case.

While DSCA maintains internal records that track the extent to which  waivers are used to their fullest value, we were unable to fully validate  certain data elements on equipment quantities. This precluded our  ability to report on the amount of total costs waived relative to the  value of the approved waiver. DSCA officials stated that when DSCA  grants a waiver there is a ceiling on the value of the waiver, which  functions similar to a coupon in that it cannot be used to waive  nonrecurring costs that exceed the value of the approved waiver.  DSCA maintains information on the equipment quantities for each  FMS case in DSAMS. However, in order to estimate the costs waived,  DSCA officials stated that they manually review each FMS case  associated with a waiver to identify the quantities purchased, which  may change through amendments to the FMS case. DSCA provided a  dataset that compares approved waivers to costs waived; however,  we could not verify equipment quantities from DSAMS. We also  interviewed DSCA officials to gain insight about their quality control  process to ensure the data are reliable. Our ability to verify equipment  quantities made it difficult to report on actual costs waived.

To determine the factors DOD considers when reviewing waiver requests,  we selected a non-generalizable sample of 24 waiver requests and the  related documentation and files to identify the information the foreign  government submitted as part of the request, including any information on  competing items, and how these waivers are considered as part of the  overall FMS program. We selected the sample from the dataset provided  by DSCA on the total waiver requests from fiscal years 2012 through April  2017. The sample included waiver requests citing each of the three  justifications and represented different geographical regions. To enhance  our understanding of how anomaly waivers are processed, we selected 5  waiver requests to include in our sample because of their unique  characteristics:

The only 2 waiver requests that cited cost savings to the U.S.

The only 2 loss of sale waiver requests that were denied.

One waiver request from a foreign government that would have been  eligible to use the equipment standardization justification but cited the  loss of sale justification in its waiver request.

To select the remaining 19 waivers, we set a threshold for waivers  approved where the value of the nonrecurring cost was over $20 million  to capture high-value waivers, as these waivers represented 80 percent  of the total value of approved waivers within our time frame for our  sample selection. Next, we selected at least 2 waiver requests from each  fiscal year for the 6-year period included in our review and ensured a mix  of waivers requested by various foreign governments, including those that  had the highest value of waivers approved. We also ensured that the  waivers reflected a mix of FMS cases to be managed by the Air Force,  Army, and Navy, which also review and provide input to DSCA on the  waiver requests. Our sample includes a higher number of loss of sale  justifications to provide greater insight about how DOD considers these  requests given the minimal requirements and that these requests  represent the majority of costs requested to be waived. While our findings  are based on a non-generalizable sample and cannot be used to make  inferences about all FMS nonrecurring cost waivers requested, the  sample provides insight on the specific circumstances of waiver requests  and DSCA’s decision in these cases.

We recorded the information obtained from our review of the waiver  request files in a data collection instrument. One analyst entered  information in the data collection instrument and another analyst  independently reviewed the information to ensure accuracy. After  reviewing the waiver requests, we interviewed officials from military  departments associated with the waiver request files that we reviewed to  obtain clarifying information about specific waiver requests.

To determine the efficiency of the waiver review process, we reviewed  documentation for the 24 selected waiver requests to identify the offices  involved in the review process, and the length of time taken to review and  decide on the waiver request from the time of submission. We used the  same data collection instrument to record this information as part of the  two analysts’ reviews. We compared these offices’ practices to review the  waivers with the Standards for Internal Control in the Federal  Government, which calls for agencies to assign and delegate  responsibilities in a manner that maximizes efficiency and effectiveness.  In addition, we reviewed relevant DOD policy and interviewed officials  from the military departments, DSCA, the Office of the Undersecretary of  Defense (OUSD) Comptroller, OUSD for Policy, and OUSD for  Acquisition, Technology, and Logistics (AT&L) to discuss their roles in  reviewing nonrecurring cost waiver requests and the steps they take  during their review.

Appendix II: Comments from the Department of Defense

Appendix III: GAO Contact and Staff Acknowledgments

In addition to the contact named above, Candice Wright (Assistant  Director), Jessica Karnis (Analyst-in-Charge), Emily Bond, Lorraine  Ettaro, Cale Jones, William Lamping, Miranda Riemer, and Roxanna Sun  made key contributions to this report.

Foreign governments buy billions of dollars of defense equipment through the Department of Defense's foreign military sales program. They are required to reimburse DOD for certain research, development, and other one-time costs related to the equipment.

However, governments may ask DOD to waive those costs. DOD has granted $16 billion in waivers over the last 6 years to help these sales go through.

We found that DOD has prioritized the benefits of making sales over recouping costs, and that it serves U.S. interests to do so. We also found that the waiver review process can be repetitive, so we made a recommendation to address that.

Question: How has the Department of Defense handled waivers over the past 6 years?

Answer: In the past 6 years, the Department of Defense (DOD) approved waivers valued at nearly $16 billion that it might otherwise have collected from foreign governments as part of its sales of major defense equipment through the Foreign Military Sales (FMS) program.

Question: What does the Arms Export Control Act allow the DOD to do?

Answer: The Arms Export Control Act, as delegated, authorizes the Defense Security Cooperation Agency (DSCA) within DOD to waive nonrecurring costs under certain circumstances, such as to standardize equipment with allies.

Question: What was the approval rate for the waivers from 2012 to 2017?

Answer: From fiscal years 2012 through 2017, DSCA reviewed 813 waivers and denied 3, resulting in an approval rate of 99 percent.

Question: What were the financial effects of the waivers last year?

Answer: As shown in the figure below, the value of approved waivers significantly increased to nearly $6 billion last year, which is due to 2 waivers totaling nearly $3.5 billion for sales of missiles and related support systems.

DOD Approved Nonrecurring Cost Waivers Valued at Billions of Dollars over the Past 6 Years

DOD Approved Nearly All Requested Nonrecurring Cost Waivers

DOD Considers Foreign Policy, National Security, and Economic Factors When Reviewing Waiver Requests

Question: What does the DSCA consider when reviewing waivers?

Answer: When reviewing waivers, DSCA considers foreign policy and national security factors, such as interoperability with allies, and economic factors, such as support for the U.S. defense industrial base.

Question: What are the benefits of approving waivers?

Answer: Agency officials stated that approving waivers helps ensure sales go through and such broader benefits are realized.

Question: To what extent are DSCA practices consistent with the Arms Export Control Act?

Answer: DSCA's practice to approve waivers is consistent with the authority it has been delegated under the Arms Export Control Act and is influenced by these benefits.

Appendix I: Objectives, Scope and Methodology

Question: Why is the process to consider waivers inefficient?

Answer: The process DOD has established to consider waivers is, at times, inefficient and repetitive. DSCA has final approval authority; however, multiple DOD offices must review and provide input on each waiver, with some offices reviewing waivers for the same purpose.

Question: How could the process be made more efficient?

Answer: Federal standards for internal control call for agencies to allocate resources and assign responsibilities to achieve efficiency and effectiveness.

Question: What has the DOD done to improve efficiency?

Answer: DOD has already taken steps to improve the efficiency of the waiver review process; for example, by reducing the time a few offices take to review the waivers.

Question: What are the benefits of improving the waiver review process?

Answer: Nonrecurring cost waivers are one part of the larger FMS process, and continuing to streamline the waiver review process would better position DSCA and the military departments to identify opportunities to maximize efficiencies.

Roles and Responsibilities of DOD Offices in Reviewing Nonrecurring Cost Waiver Requests

DOD Could Take Steps to Enhance Efficiency of Waiver Review Process

Question: How did the Arms Export Control Act affect the DOD?

Answer: Under the Arms Export Control Act and its implementing regulations, DOD is required to recover nonrecurring costs—unique one-time program-wide expenditures—for certain major defense equipment sold under the FMS program.

Question: What do these costs include?

Answer: These costs include research, development, and one-time production costs, such as expenses for testing equipment.

Question: What other costs does the Act permits to be waived?

Answer: The Act also permits those costs to be waived under certain circumstances, such as to standardize equipment with select allies or to avoid a loss of sale.

Determining Nonrecurring Costs for Sales of Major Defense Equipment under the FMS Program

Question: What did the GAO analyze to value of waivers?

Answer: To conduct this work, GAO analyzed DOD data of nonrecurring cost waivers for fiscal years 2012 through 2017, the most recent and complete data, to identify the value of waivers.

Question: What did the GAO review in the analysis?

Answer: GAO then reviewed a non-generalizable sample of 24 of these waivers that included a mix of justifications and geographic regions.

Question: What did the GAO do to review the process of assessing waivers?

Answer: GAO reviewed relevant DOD policy and interviewed DOD officials about the process to assess these waivers.