The U.S. Air Force B-21 Raider stealth bomber by Northrop Grumman is exempt from a Title 10 requirement that a defense secretary seek a waiver for a low-rate initial production buy of more than 10 percent of total production for a Major Defense Acquisition Program, the Department of Defense said.

The Department of the Air Force Rapid Capabilities Office (RCO), created in 2003 to speed fielding, manages the B-21 program. One of the RCO’s first projects was to upgrade the integrated air defense system around Washington, D.C., before the 2005 presidential inauguration, the Air Force said.

The RCO director reports to the DoD acquisition chief and the Air Force secretary, but, in this case, Air Force Secretary Frank Kendall is recused from B-21 decisions due to his previous consulting work for Northrop Grumman.

For systems other than Navy ships and military satellites, Section 4231 of Title 10 provides that DoD limit low-rate initial production (LRIP) to 10 percent of total production in an Major Defense Acquisition Program (MDAP) unless the defense secretary justifies an increase beyond that threshold and receives a congressional waiver.

“The B-21 is managed as a highly sensitive classified program per 10 USC 2430, and is not a traditional Major Defense Acquisition Program,” DoD said on June 3 in an email response to questions.

The Section 4231 of Title 10 restriction came from Section 3015 of the Federal Acquisition Streamlining Act of 1994, P.L. 103-355, the enactment of a Senate bill, S. 1587, sponsored by the late Sen. John Glenn (R-Ohio) and other prominent senators, including Sam Nunn (D-Ga.), Carl Levin (D-Mich.), and William Cohen (R-Maine), who went on to serve as defense secretary from 1997 to 2001.

“Concurrency,” buying production aircraft before they finish operational testing, is decades-old and reached a high pitch at the time of Air Force plans for the Northrop Grumman B-2 Spirit stealth bomber, the forerunner to the B-21.

On July 1, 1994, the late Sen. David Pryor (D-Ark.) said on the Senate floor that “Fly Before You Buy is not a new concept.”

“It was first promoted in the wake of the Vietnam War after thousands of American soldiers lost their lives because of weapons that failed to perform as expected,” he said.

“Operational testing is of little or no use if it is conducted after the weapon system has been purchased,” Pryor said. “We simply cannot afford to buy now and fix later. Time and time again, DoD has purchased weapons before operational testing has shown that they work.”

To help remedy the lack of operational testing, Congress created the DoD Directorate of Operational Testing and Evaluation (DOT&E) in 1983. DOT&E reports to the defense secretary and Congress. Despite DOT&E’s oversight, Pryor said on July 1, 1994 that concurrency continued in such programs as the Air Force B-1 bomber and C-17 transport by Boeing and the U.S. Navy T-45 trainer by Boeing and BAE Systems.

Pryor said on July 1, 1994 that “37 percent of the Navy’s T-45 plane were bought before operational testing.”

“This plane needed major design changes,” he said. “Tests showed it needed a new engine and new wings…These planes are sitting on an air field waiting for the contractor to come back, take the original wings off, and attach new, improved, workable wings to these planes.”

The Congressional Research Service said in a 2021 report that “plans call for initial acquisition of B-21s” in five LRIP lots “totaling 21 aircraft.”

That would be 21 percent of the current Air Force planned buy of 100 B-21s. On May 15, Pentagon acquisition chief William LaPlante told Senate defense appropriators that the B-21 program “has negotiated fixed price production options for the first 40 aircraft.”

Asked whether the first 40 are all LRIP or whether the 19 that may be outside of LRIP are the first full production B-21s, DoD said that “further information regarding the B-21 contract structure, acquisition milestones, and aircraft production is classified.”

Northrop Grumman has not responded to a query on the fixed price options for the first 40 B-21s.

“The Air Force is violating best acquisition practices in the case of the B-21 program,” Dan Grazier, a senior fellow at the Stimson Center, wrote in a June 4 email. “The first test flights of the program have only just begun, so it is too early to be talking about production in any quantity. The right way to do this is to first build a few production-representative test aircraft and then put them all the way through the operational test process and then evaluate the results. It is only then that people will know if the B-21 actually performs as it should.”

“Buying aircraft in any significant quantity before testing is complete creates a huge amount of risk because the early aircraft will almost certainly include a large number of design flaws that will only be revealed through testing,” Grazier wrote. “The Air Force will then be stuck with immature aircraft that either need to go back to the manufacturer to be retrofitted with the design upgrades which is an expensive process even if they can be upgraded. The service could also end up being stuck with aircraft that were very expensive to purchase that can’t be upgraded.”

“Abusing the LRIP process is what has led to enormous problems in the past, most recently the F-35 program, where years and billions of dollars have been wasted buying immature aircraft that may never be fully ready for combat,” Grazier wrote.

Last month, the Air Force said that the B-21 continues ground and flight testing at Edwards AFB, Calif., and that the program is on track to deliver aircraft in the mid-2020s to Ellsworth AFB, S.D., which is to be first B-21 main operating base and the location of the B-21 formal training unit.

LaPlante told the Senate defense appropriators on May 15 that the B-21 “entered limited rate production” last November and “remains on track to meet its key performance parameter for Average Procurement Unit Cost of $550 million in Base Year 2010 dollars”–$792 million in 2024 dollars.

On April 25, DoD implemented a final rule that limits fixed-price, LRIP contracts involving development and production to one lot for MDAPs. The enactment of the rule was to comply with Section 808 of the fiscal 2023 National Defense Authorization Act.

In January, Northrop Grumman reported a $1.2 billion after-tax charge due to “macroeconomic” factors on the initial five, fixed-price LRIP lots for the B-21. The company said that the macroeconomic problems included inflation, supply chain and labor constraints and that the company will lose money on the five lot work through 2030.

Air Force Global Strike Command has said that it may need 145 or more B-21s, but the Air Force has said that it will not need to make a decision to buy more than 100 until the mid-2030s.

The Air Force picked Northrop Grumman for the Long Range Strike-Bomber, which became the B-21, on Oct. 27, 2015. The Air Force then estimated the total contract value to be $80 billion. Northrop Grumman beat out Boeing and Lockheed Martin teams, which protested the award.