Responding to national disasters and emergencies: a contract and fiscal law primer

Army Lawyer, Oct, 2007 by Christopher B. Walters

Future Defense Support to Civilian Authorities (DSCA) planning and execution must consider the nondoctrinal use of military forces, yet remain within the constraints of federal law and regulations. (1)

I. Introduction

Since the beginning of our Nation, the U.S. military has been called upon to respond to all manner of domestic disasters and emergencies. (2) Such disasters, natural and man-made, have included hurricanes, typhoons, fires, floods, earthquakes, tornados, massive explosions, and terrorist attacks. (3) Other types of domestic disasters and national emergencies that may require military deployment and support include disease pandemics, major power blackouts, nuclear, biological, or chemical releases, and civil disturbances and insurrections, to name a few. (4) As in all legal areas, including the fiscal and contracting realm, judge advocates deploying in support of a domestic disaster or emergency must be keenly aware of the types of support the military will be asked to provide and the legal factors that will affect the response. (5) Despite the severity or catastrophic nature of a disaster, military support to civilian authorities must always remain within the fiscal and contracting laws and regulations that govern such assistance. While there are emergency acquisition rules to add flexibility in these situations, fiscal and contracting rules remain in effect as in all other military operations. (6) Proactive coordination and dose cooperation by judge advocates with all fiscal and contracting offices involved in the mission will ensure that standard procedures and rules are followed and that military funds and resources are not misapplied.

The purpose of this primer is to provide the judge advocate deploying in support of a domestic disaster or emergency a quick overview of the federal response scheme, highlight some lessons learned and unusual issues that arose in the past, and identify a recent addition to the Federal Acquisition Regulation (FAR) resulting from Hurricane Katrina. Note that a detailed discussion of government fiscal and contracting law procedures and regulations is beyond the scope of this primer. Judge advocates should closely review applicable references.

I. Federal Response General Scheme

A. Initial Overview

The Department of Defense (DOD) is expected to support civil authorities in response to national disasters and emergencies; thus, it is critical for the judge advocate to know the applicable legal framework. Some essential references directing military support include the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act), (7) DOD Directive (DOD Dir.) 3025.1, Military Support to Civil Authorities (MSCA), (8) DOD Dir. 3025.15, Military Assistance to Civil Authorities (MACA), (9) DOD Dir. 3025.12, Military Assistance for Civil Disturbances (MACDIS), (10) Army Field Manual (FM) 100-19, Domestic Support Operations, (11) and the Department of Homeland Security (DHS) National Response Plan (12) (NRP). Note that there is a draft DOD Directive 3025.XX, Defense Support of Civil Authorities, pending approval and publication. This directive will update the doctrinal term of such support from MSCA to DSCA and will consolidate and supersede the DOD directives listed above. These main authorities govern DOD support during national disasters and emergencies and specify chains of command, approval authorities for different types of support, and sources of funding. (13) While DOD support to civilian authorities may be the main effort during early stages of a national disaster or emergency, the civil authorities ultimately retain primary responsibility and DOD serves in a supporting capacity. (14)

Army FM 100-19 is the combined Army and Marine Corps manual providing doctrine for domestic support operations, and encompassing a much broader range of support than just disaster and emergency relief. (15) The manual provides direction on the loan and lease of military materiel, but primarily refers to service-specific regulations for detailed guidance. (16) For those operations where there are loans or leases, the traditional policy is that DOD must be reimbursed by the borrowing organization of all costs incident to the use, delivery, return, and repair of the military items. (17) The borrowing agency must also reimburse for the full purchase price of consumables used and for any significant depreciation on nondurable goods. (18) Service secretary level approval is required for loans of "arms, ammunition, combat vehicles, vessels, and aircraft." (19) The manual frequently and notably refers to the Stafford Act, (20) Economy Act, (21) and DOD Operational Plan Garden Plot (Garden Plot) (22) for specific reimbursement procedures. (23)

Contracting is the key logistical component for purchasing, leasing, or renting supplies or services from non-federal entities when responding to a crisis. (24) Contracting is essential to procure "all classes of supplies, labor, mortuary affairs, laundry, showers, food, service, sanitation, billeting, transportation, maintenance and repair, access to communications networks, temporary real property leasing, and limited minor construction, that may be required during the military's relief efforts." (25) Warranted contracting officers must be immediately available in the earliest stages of the military response to ensure the rapid and proper accomplishment of resourcing all goods and services. (26) Initially, decentralized contracting is the preferred means to rapidly respond to disaster demands. (27) However, the contracting function should become increasingly more centralized as the crisis stabilizes, permitting the military to shift the resourcing task to civil agencies to allow the eventual military withdrawal and redeployment. (28)