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DoD Releases Additional Guidance on the Department’s Artificial Intelligence Strategy

Client Alert | 3 min read | 11.30.23

On November 2, 2023, the Department of Defense (DoD) released its 2023 DoD Data, Analytics, and Artificial Intelligence Adoption Strategy (2023 Strategy), and an accompanying Fact Sheet, to accelerate the adoption of analytics, data, and artificial intelligence (AI) technologies that will enable better and faster decision-making at all levels and across the DoD.  The 2023 Strategy builds upon and supersedes the DoD’s first AI Strategy published in 2019, reported on here, and the revised Data Strategy published in 2020 to continue the DoD’s digital transformation, unifying previous guidance and enabling stronger alignment and synchronization to scale advanced capabilities for use across the DoD. 

Developed by the Chief Digital and AI Office (CDAO), the 2023 Strategy describes the approach to improving the organizational environment within which DoD leaders and warfighters will be able to make rapid, well-informed decisions by expertly leveraging high-quality data, advanced analytics, and AI for enduring decision advantage.  Strengthening decision advantage for the DoD’s warfighting and business operations is key to maintaining a resilient future force that can address a broader array of operational problems, dynamically campaign and deter, and prevail in conflict, if necessary.  The 2023 Strategy also focuses on the DoD’s efforts to support the DoD “AI Hierarchy of Needs,” defined as: quality data, governance, insightful analytics and metrics, assurance and responsible AI.  For this AI Hierarchy of Needs, the DoD’s goals are to: (i) invest in interoperable, federated infrastructure; (ii) advance the data, analytics and AI ecosystem; (iii) expand digital talent management; (iv) improve foundational data management; (v) deliver capabilities for the enterprise business and joint warfighting impact; and (vi) strengthen governance and remove policy barriers. 

To succeed here, the 2023 Strategy emphasizes it cannot do so alone.  DoD will follow an “adopt-buy-create” framework similar to the DoD Software Modernization Strategy and Office of Management and Budget (OMB) Circular A-130, Managing Information as a Strategic Resource.  Specifically, this “adopt-buy-create” framework will likely proceed as follows: DoD leaders will first seek to adopt solutions that are already Joint- or Component-sponsored before exploring capabilities available on the open market; next, when DoD-owned shared services are unavailable, the DoD will challenge vendors to solve specific business and mission problems, while designing acquisition strategies to avoid vendor lock-in; finally, DoD customers with clean, high-quality data can seek commercially available analytics and AI capabilities while retaining appropriate data rights.

The 2023 Strategy also emphasizes that government contracts for commercial solutions will ensure the DoD’s capability pipelines address changing requirements while protecting industry intellectual property.  The DoD understands that commercial solutions may not always meet mission requirements but that such solutions can provide capabilities for dual-use applications.  The use of commercial applications, software, and support frees up DoD engineers for inherently governmental work and challenges.  Therefore, DoD desires a data, analytics, and AI “ecosystem” that fosters commercial competition and collaboration when developing and deploying AI-enabled systems.  DoD will only create its own solutions when commercial solutions and applications cannot be adopted to meet its specific mission needs.  Based on the Strategy, there will be opportunities for AI companies/government contractors to support DoD’s use of AI-enabled systems.  Such companies should look out for these opportunities in the future.  Crowell continues to monitor developments of the procurement of AI technologies by the federal government.

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Client Alert | 5 min read | 12.12.25

Eleventh Circuit Hears Argument on False Claims Act Qui Tam Constitutionality

On the morning of December 12, 2025, the Eleventh Circuit heard argument in United States ex rel. Zafirov v. Florida Medical Associates, LLC, et al., No. 24-13581 (11th Cir. 2025). This case concerns the constitutionality of the False Claims Act (FCA) qui tam provisions and a groundbreaking September 2024 opinion in which the United States District Court for the Middle District of Florida held that the FCA’s qui tam provisions were unconstitutional under Article II. See United States ex rel. Zafirov v. Fla. Med. Assocs., LLC, 751 F. Supp. 3d 1293 (M.D. Fla. 2024). That decision, penned by District Judge Kathryn Kimball Mizelle, was the first success story for a legal theory that has been gaining steam ever since Justices Thomas, Barrett, and Kavanaugh indicated they would be willing to consider arguments about the constitutionality of the qui tam provisions in U.S. ex rel. Polansky v. Exec. Health Res., 599 U.S. 419 (2023). In her opinion, Judge Mizelle held (1) qui tam relators are officers of the U.S. who must be appointed under the Appointments Clause; and (2) historical practice treating qui tam and similar relators as less than “officers” for constitutional purposes was not enough to save the qui tam provisions from the fundamental Article II infirmity the court identified. That ruling was appealed and, after full briefing, including by the government and a bevy of amici, the litigants stepped up to the plate this morning for oral argument....