As the Army moves to incorporate right-to-repair provisions in all new and existing contracts, Congress is grappling with how to strike a balance between military readiness and protecting companies’ intellectual property. 

In an April 30 memo, Defense Secretary Pete Hegseth directed the Army secretary to “identify and propose contract modifications for right-to-repair provisions where intellectual property constraints limit the Army’s ability to conduct maintenance and access the appropriate maintenance tools, software and technical data.”

Jesse Tolleson, the acting assistant secretary of the Army, told the House Armed Services Committee on Wednesday that the service is working to identify where problems related to repair access are occurring and how those gaps can be addressed in existing and new contracts.

“We are still in the process right now of trying to develop what that strategy is going to be. We have already leaned forward, and we’re essentially surveying the force and the fleet to try to get feedback, to understand exactly where a right to repair issue has come up, and then it is a matter of looking at how do we then fix that with existing contracts. And then moving forward, what is the appropriate level of access that we’re going to have to have with new systems?” Tolleson told House lawmakers. 

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Modifying existing contracts to fix intellectual property issues is not ideal, but the government also has no choice, Stan Soloway, president and CEO of Celero Strategies and federal acquisition expert, told Federal News Network.  In addition, there are too many existing contracts with flawed IP clauses — negotiating those clauses will be a massive undertaking that could take DoD years. 

But now that the right-to-repair issue, which has plagued DoD for years, is gaining traction and bipartisan support from Congress, both the House and Senate included provisions in their versions of the 2026 defense policy bills. 

“We put language in the [National Defense Authorization Act] that passed out of here last week that addresses that — it still needs some love and attention. We would urge your participation in that process. I think we have the attention of the private sector now, our industry partners, but as you know this NDAA is going to be an evolving product over the next six to eight weeks, so we look forward to a lot of input from you and our industry partners on that topic,” Rep. Mike Rogers (R-Ala.) told senior defense officials during the hearing.

One provision in the House version of the bill, titled Data-as-a-Service Solutions for Weapon System Contracts, requires the Defense Department to negotiate access to the technical data and software needed before signing a contract. The data the Pentagon would have to negotiate access to includes detailed manufacturing or process data, digital networks and models, software-related information and operational and training information. That data would be accessed as a service through various methods like online, in person or via machine-to-machine encryption.

The Defense Department cannot require a commercial vendor to provide access to technical data in a way that differs from what they typically offer, unless it’s been specifically negotiated.

“I think the data-as-a-service proposal from the [Streamlining Procurement for Effective Execution and Delivery] Act is a unique, innovative approach because there is a need for us to have access to the technical data that we need in order to maintain the ability to sustain these systems organically. God forbid we’re in a place where the sustainment exceeds the industrial capacity because we are engaged in conflict — we must have an organic industrial base that understands how to leverage the technical data of these systems in order to repair them,” Michael Duffey, the under secretary of defense for acquisition and sustainment, told the House lawmakers.

Meanwhile, Senate lawmakers included a provision in their version of the annual bill that would require contractors to provide detailed instructions for repair and maintenance. 

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“The Defense secretary may not enter into a contract or agreement for the procurement, sustainment, or subsequent modifications of covered defense equipment unless the contract or agreement requires that the contractor deliver, or offer as a negotiated price option, Instructions for Continued Operational Readiness to the secretary upon delivery of the equipment,” the provision states.

The contractor would have to provide the defense secretary with the rights to diagnose, maintain and repair the equipment — the department could withhold payment to the contractor until the company delivers those instructions.

The House and Senate must reconcile their separate versions before they pass the annual legislation. 

Duffey told lawmakers the department is not prioritizing specific systems as it works to implement right-to-repair policies. Defense officials, however, are looking at which systems are most critical to warfighters and how dependent they are on contractors for repairs. 

“I think we have to be creative about if there is a surgical way to get access to the data that we need in order to enable us to repair the and sustain the systems without violating the intellectual property protections that are the profit motive for corporations and are really the enabler of our industrial capability. I don’t have the answer today, but I assure you I understand the complexity of the issue,” Duffey told lawmakers.

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