Practice Notes: How to (Try to) Prevent a Continuance

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Practice Notes

How to (Try to) Prevent a Continuance

A Military Justice Practitioner’s Guide to Paying for Experts

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By Major Lauren Teel Browning

A military judge (MJ) and a defense counsel (DC) are at a motions hearing.

MJ: Defense Counsel, will you be able to proceed on the docketed date?

DC: No, Your Honor. We are less than a month away from trial and our expert still has not been contracted for the eighty hours of pretrial work we need.

MJ: Understood, we will continue the case.

The above scenario plays out in courtrooms across the world. Procuring experts often causes delays in courts-martial.1 In 2022, in United States v. Grindstaff, the Government cited failure to contract an expert as a reason for delay when the defense asserted the accused’s rights to a speedy trial were violated.2 The Government took five months to contract the expert after the convening authority (CA) approved the expert’s services.3 The Army Court said, “In August, the [G]overnment authorized a defense DNA expert, but failed to execute a contract and allow the expert to start work until January 2020. We presume, based on a lack of information in the evidence, that these delays were the result of negligence . . . .”4

Military justice practitioners (MJPs) must seek the swift execution of justice;5 they also require expert witnesses and consultants.6 This can lead to tension between speedy justice and ensuring enough time for experts to assist in the process.7

Many experts that MJPs use already work for the Government.8 They require no payment other than costs for temporary duty (TDY).9 However, due to need or preference, MJPs may require expert services of a non-governmental employee.10 These require a method of payment.

Thankfully, MJPs are not helpless in the seemingly mysterious world of Government acquisitions. They can and should understand principles, hiring methods, and processes of contract and fiscal law to achieve their tandem goals of expeditious yet fair administration of justice. Military justice practitioners play a key role in the timely execution of justice and the proper hiring of much-needed expert assistance.11

To further illustrate issues that arise when hiring experts, contemplate another scenario.

Scenario 2:

A chief of military justice (CoJ) and a trial counsel (TC) are talking two days before a contested sexual assault case.

TC: Our expert is still not contracted. Should we ask for a continuance?

CoJ: Of course not! Tell them to come anyway, and we will get it figured out. Surely we can contract them in two days.

Imagine you are the TC in Scenario 2. You followed your CoJ’s direction and told the expert to come to the trial. If the contract is not in place before the expert travels to the trial, you may have just made an unauthorized commitment.12 If not ratified by the contracting office,13 you and the CoJ might both be reported to Congress.14

Similarly, a defense counsel recently spoke with an expert to prepare the expert request.15 The CA later approved the expert. Before performing more work, the CA approved a non-trial disposition. The expert then submitted a several-hundred-dollar invoice. Should it be paid?16

Another version of this scenario happens when a trial takes longer than anticipated and extends beyond the contracted dates. Though likely to be a simple contract modification, counsel must coordinate with the contracting officer (KO) for approval.17

These situations are not uncommon and, unfortunately, not always properly handled. Colonel Bret Batdorff, Chief Circuit Judge, 2d Judicial Circuit, U.S. Army Trial Judiciary, says that experts who begin performance before the contract is finalized “never get paid or they fight for months/years to get paid.”18 In some cases, the experts allege that they were incorrectly told the contract was in place; other times, it is the expert’s fault.19 “But, the counsel need to know that they should not begin work with their expert(s) until they have a contract that’s finally approved . . . which leads to delay!”20

Preventing delay requires coordination.21 Coming to stakeholders with requisite knowledge of the processes and options helps facilitate proper execution. This primer aims to give MJPs an understanding of how to write comprehensive expert requests (that will later become the basis of a contract or binding agreement),22 how to educate experts on how they are fully hired (and thus will be paid for their work),23 and how to articulate reasons for delays to courts when necessary.

If the importance to individual clients and cases does not allow the magnitude of funding experts to sink in, consider this: the 25th Infantry Division spent $365,000 on experts in fiscal year 2022.24 Over $100,000 was on fees, with the remainder spent on travel.25 Extrapolated, the Army spends millions of dollars on experts.26

Hiring experts requires knowledge of both contract and fiscal law.27 First, MJPs should understand the principles of contract and fiscal law generally and as applied to hiring experts. These principles are rooted fundamentally in the Constitution and its separation of powers; the Competition in Contracting Act28 (CICA), its exceptions, and the Federal Acquisition Regulation (FAR)29 provisions and thresholds; and finally, the policies providing for miscellaneous payments (MP). The following section of this primer explains these fundamentals.

There are many FAR-based methods for procuring experts.30 However, this primer focuses on two methods: Government purchase cards (GPC) (for expenditures under the micro-purchase threshold (MPT))31 and contracting with an expert for a single case/trial. The final section focuses on MP as a third, non-FAR-based method to pay for experts.32

Principles: Constitutional, Statutory, and Policy Basics for Military Justice Practitioners

Most rights of the accused in the military justice realm stem from the Constitution, while others stem from statutes and executive orders.33 Article 46 of the Uniform Code of Military Justice (UCMJ) provides that the accused, the Government, and the court-martial have equal opportunity to obtain witnesses.34 Hiring experts is required because non-government experts expect payment, and there are few reasons that the Government will accept voluntary services.35 Similar to the rights of the accused, the Constitution speaks on these issues.

The Constitution and Separation of Powers

The framers of the Constitution vested Congress with the power of the purse by requiring that “no Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”36 Any exercise of power by a Government agency “is limited by a valid reservation of congressional control over funds in the Treasury.”37 Federal agencies may not make any payment unless Congress authorized funding authority.38 Congress codified this principle in the Antideficiency Act (ADA), which further delineates the separation of powers.39 When an executive agency spends without authority and violates this law (and cannot remedy it), Congress requires notification to the President and Congress.40

Similarly, the Supreme Court has recognized the Government’s sovereign and inherent right to contract.41 Congress then granted that authority to contract to only certain Government actors within public policy goals via legislation, including CICA.42

The Competition in Contracting Act and FAR

The Competition in Contracting Act requires the Government to use full and open competition in obtaining goods and services unless an exception applies.43 In addition to its requirements, CICA requires the use of FAR procedures.44 The Federal Acquisition System balances giving “the best value product or service to the customer while maintaining the public’s trust and fulfilling public policy objectives.”45 Further, the acquisition process must “satisfy the customer in terms of cost, quality, and timeliness” while prioritizing proficient contractors and encouraging competition.46 The rule, except for experts, is to use competition to allow for the best use of public resources.47 However, the rest of the FAR applies to contract-based expert hiring.48

Another FAR-based method used for purchases under the MPT is a GPC.49 The MPT differs for different types of purchases, but $2,500 is the maximum amount for non-recurring services.50 The GPC may be useful for initial consultations, as discussed below. In addition to the GPC and contracting, some units use MP.51

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Miscellaneous Payments

Miscellaneous payments are a “result of a claim for payment or reimbursement of a valid, non-recurring, non-contractual expense of the [Department of Defense (DoD)], that is not payroll related for a military or civilian member, and when use of the [GPC] is not feasible or appropriate.”52 The DoD Financial Management Regulation53 (FMR) and the DoD Guidebook for Miscellaneous Payments54 (MP Guidebook) govern these transactions.

The MP Guidebook example form confusingly cites 28 U.S.C. § 2412 as the authority for expert witness payment, which refers to civil litigation, while also referring to experts for courts-martial.55 Instead of 28 U.S.C. § 2412, MP are derived from the Purpose Statute.56 The Purpose Statute provides that “[a]ppropriations shall be applied only to the objects for which the appropriations were made except as otherwise provided by law.”57 When not explicitly provided for, the expenditure must be a “necessary expense” that is (1) logically related to an appropriation’s purpose, (2) not prohibited, and (3) not otherwise provided for.58 Applying the first prong, the Government Accountability Office has “long held that where funds are available for a broad purpose, such as ‘operation and maintenance,’ the purpose of the appropriation is informed by the underlying program or organic legislation.”59 An “appropriation is available . . . to carry out . . . statutory responsibilities.”60

Here, the 2023 Consolidated Appropriations Act provides operations and maintenance funds for the Army for expenses not otherwise provided for.61 The “underlying program or organic legislation” here stems back to the first UCMJ in 1951, which allowed expert compensation.62 In 1961, 32 C.F.R. § ٥٣٤.٣(f) provided for spending Government funds on experts,63 and the MP Guidebook still cites section ٥٣٤.٣ generally.64 Additionally, in Article 46, UCMJ, Congress provides that “the trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the President may prescribe.”65 The President promulgated Rule for Courts-Martial (RCM) 703(d) to reflect case law and to flesh out Article 46, UCMJ by categorizing experts into both witnesses and consultants.66 Finally, the James N. Inhofe National Defense Authorization Act for Fiscal Year 2023 discusses the approval authority for experts.67

Arguably, witnesses, including expert witnesses and consultants, fall within the statutory responsibilities and underlying program of the UCMJ and, therefore, the Army. Miscellaneous payments expenditures for experts are appropriate because they are: (1) logically related to the appropriation’s purpose, (2) not prohibited, and (3) not otherwise provided for.68

Provisions of the CICA do not apply, as MP are non-contractual.69 However, MP require binding agreements, which appear similar to contracts.70 This tension and lack of express statutory authority lead some units to prohibit MP.71 In those situations, FAR-based payments suffice.

Procurement Methods: FAR-based Methods to Obtain Experts

While many ways to pay for experts exist, two frequently used methods are based in FAR.72 First, for small commitments of time costing less than $2,500, a GPC may be used.73 Second, experts may be contracted.74 This section covers both.

Government Purchase Cards

A GPC can be used for services under the MPT.75 A cardholder is the only person authorized to use the GPC bearing their name.76 A micro-purchase means “an acquisition of supplies or services using simplified acquisition procedures, the aggregate amount of which does not exceed the [MPT].”77 The maximum amount allowed to be spent on a stand-alone purchase is the MPT.78 While the MPT is normally $10,000, the limit is lowered to $2,500 for non-recurring services.79 This $2,500 limit applies to expert witness services.80

For some MJPs, the idea may occur to ask a cardholder to segregate one large payment into separate payments.81 However, these “split purchases” are prohibited.82 A split purchase “is the intentional breaking down of a known requirement to stay within . . . the MPT to avoid other procurement methods or competition requirements.”83 In these cases, contracting may work instead.84

Government Purchase Card Process

The process for using a GPC is: (1) the CA approves the use of funds,85 (2) the G-8 and CA sign a Department of the Army (DA) Form 3953, Purchase Request and Commitment Sheet,86 and (3) the GPC cardholder remits payment.87

Rule for Courts-Martial 703(d)(1) requires the CA’s authorization to employ an expert at any Government expense.88 This request may be simple because there may not be enough information yet for the formal request for work exceeding $2,500.89 However, RCM 703(d) requires the CA to approve the expenditure.90

The CA is unlikely to be the cardholder, so coordination with the cardholder is required to remit payment.91 The cardholder remits payment either before or after the expert’s performance, which completes the process.

Initial Consultation to Determine “Necessity” for Experts

Sometimes MJPs may not know what the expert will accomplish for the accused without an in-depth conversation with the expert.92 An MJP can use a GPC to pay for this consultation and avoid an unauthorized commitment by implying that the expert will be paid later.93 Using a GPC also prevents the expert from volunteering their services to secure a contract later.94 An initial consultation can help the MJP draft the formal request.95

A formal expert witness request must meet the United States v. Gonzalez standard for necessity, which requires: “First, why the expert assistance is needed. Second, what would the expert assistance accomplish for the accused. Third, why is the defense counsel unable to gather and present the evidence that the expert assistant would be able to develop.”96 An initial consultation can aid in determining the answers to these questions.

Similarly, MJPs must show the necessity for an expert consultant.97 Necessity is more than “mere possibility of assistance from a requested expert.”98 Rather, “[t]he accused must show that a reasonable probability exists both that an expert would be of assistance to the defense and that denial of expert assistance would result in a fundamentally unfair trial.”99 Expert consultants may later testify as witnesses.100 The initial consultation helps meet this standard.101

However, some cases require expenses over $2,500. These require a contract102 or MP.103

Contracting

The Army procures experts with contracts.104 Contracts are the most time-consuming of the methods, partly because contracts require coordination with the most stakeholders. However, contracts have the clearest statutory authority.105 Regardless of whether an MJP’s leadership prefers contracts or MP, the ultimate goal is to find efficiencies and to prevent delays. A helpful starting place to understand the contracting process is with the key players.

Stakeholders

The G-8, or resource manager, programs “resources against approved materiel requirements” and provides “fiscal stewardship.”106 They plan, budget, and execute financial resources.107

Legal administrators handle the business operations of installation Offices of the Staff Judge Advocate (OSJAs).108 In this role, they are usually the point of contact between the local contracting offices and the MJPs to facilitate contracting.109 Legal administrators (or a paralegal) serve as a contracting officer representative (COR) once the contract is awarded.110 The COR “assists in the technical monitoring or administration of a contract.”111 The MJP verifies to the COR that the hours claimed by the expert were actually worked so the invoices can be validated and paid.112

The KO is the only person with authority to bind the Government.113 “Contracting officers have authority to enter into, administer, or terminate contracts . . . [and] may bind the Government only to the extent of the authority delegated to them.”114 Many KOs work at the Mission Installation Contracting Command (MICC) contracting offices.115 The contracting office awards, executes, and administers contracts for supplies or services.116

The “requiring activity” is the entity that requires the supplies or services.117 In the case of experts, the OSJA and the MJP are the requiring activity. The requiring activity is responsible for describing its needs.118 Here, that includes articulating the expert’s purpose in the expert request.

A CA convenes the court-martial.119 The Secretary of the Service and certain commanders are designated CAs.120 Rule for Courts-Martial 703 requires Office of Special Trial Counsel or CA authorization to employ an expert, but commanders are not KOs.121

A commander exercises command authorities and responsibilities.122 A commander is a “commissioned or warrant officer . . . who . . . exercises primary command authority over a military organization.”123 Some commanders are CAs.124 Command authority does not include contracting authority, so commanders work with KOs.125

Contracting Process

The CICA and FAR specifically provide that full and open competition is not required “to procure the services of an expert” for litigation.126 The experts may be used “in any litigation or dispute” regardless of “whether or not the expert is expected to testify.”127 Because of this deviation from the general rule encouraging competition, the KO must justify their decision to only negotiate and contract with a single (sole) source and seek the appropriate approval authority.128 This is called a “justification and approval” (J&A).129 The KO and legal administrator use the information provided by the MJP in the expert request to the CA or court130 as the basis for the contract and J&A.131

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Market Research and Sole Source Justification. A “sole source justification” is used when only one person can meet the needs of the requiring activity.132 Using a sole source justification for an expert exempts the process from advertising the role to encourage competition.133 Experts are one of the few exceptions to competition that allow for sole sourcing.134

While MJPs focus on finding the best expert for their case, they are conducting the necessary market research to find the only person—the sole source—who can provide the services needed and whether their costs are consistent with others of commensurate experience.135 If there is only one qualified person who is available for the trial dates, and their cost is reasonable, then a sole source justification is appropriate.136 The explanation of this need for the expert is then reused.

The Request Becomes the Contract: Draft Wisely. Performance-based services contracts must contain either a “performance work statement” (PWS) or a statement of objectives, as well as measurable performance standards, including metrics such as “quality [or] timeliness.”137 A PWS describes “the work in terms of the required results rather than . . . ‘how’ the work is to be accomplished.”138 The PWS of the contract is drawn from the MJP’s request.139 For example, an MJP may request and then the PWS reflect that an expert consult for ten hours on alcohol’s effects on memory before the trial date. The MJP would not list the journals to be referenced, but rather the required type of assistance on that topic in connection to the facts of the case.

To support the expert request, the MJP should include the expert’s curriculum vitae and fee schedule because they show the person’s qualifications140 as well as the costs.141

Once compensation and roles are fixed, they become the basis for the contract.142 If an MJP wants an expert consultant to testify as a witness, then the request and contract should provide for this option.143 The MJP and expert should stay within the bounds of the contract. If not, then the expert might not be paid for their work.144 Only the KO may bind the Government, and altering the terms of the agreement requires KO approval.145 Thus, MJPs should carefully craft expert requests to encompass all requirements and timelines.

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From Request to Payment: How to Get from A to Z. The MJP should inform the legal administrator of the submission of expert requests.146 This allows the legal administrator (and paralegals) to prepare the Purchase Request and Commitment Sheet before the CA appointment.147 Then, when the legal administrator receives an approved148 expert request back, they work with the MJP and paralegals for completion of other paperwork.149 A template packet can aid in streamlining this process.150 An MJP can help by proofreading documents and monitoring completion.

The legal administrator will upload the documents into the Paperless Contracting File, which allows the legal administrator to observe MICC processing.151

The experts will need accounts on SAM.gov, the System for Awards Management, as well as the Procurement Integrated Enterprise Environment (PIEE).152

Most expert contracts will be under the simplified acquisition threshold (SAT) of $٢٥٠,٠٠٠.153 For contracts under the SAT, the process is truncated.154 After completing the necessary documentation, the KO signs the J&A and receives the appropriate approval.155 Then, the KO awards the contract, and the MICC will notify the OSJA and expert.156

Finally, the expert may begin. Experts and MJPs should be careful to account for the amount of time the expert works. Should they anticipate exceeding the contract amount, the entire process of approving funds and modifying the contract must begin again.157 Exceeding the time or dollar amount is a potential ADA violation, which could require investigation and might result in notification to Congress.158

If there are performance issues while the contract is ongoing, the MJP and the legal administrator (as the COR) should work with the KO to resolve and document issues in the Contractor Performance Assessment Reporting System (CPARS).159

Like any staffing in the Army, relationships are important. The legal administrator works with the MICC on all OSJA contracts, and the MICC typically works on all command contracts.160 Most MICCs are staffed by Civilian employees, who are subject to restrictive overtime laws and regulations.161 While one case may be of utmost importance to a particular MJP, the offices involved in processing the requests are also working on many different projects.162

After the expert consults or testifies, then the expert invoices in PIEE and the COR accepts the invoice. The MJP should verify the number of hours the contractor worked with the COR. Then, the MICC will work with the G-8 to release funds.163 The expert will be paid via the Defense Accounting and Finance System (DFAS).164 After that, on to the next case!

Procurement Method: MP

Miscellaneous payments are another option to pay for experts.165 Should an MJP’s G-8 and OSJA leadership be comfortable using this method, MP are the fastest way to hire experts (and therefore prevent a continuance).166 They require the fewest stakeholders and forms but are also exempt from some potentially helpful systems, like CPARS.167 Of note, the Air Force, Space Force, Navy, and Marine Corps use this method to hire experts.168

Process

The MP process does not require a contracting office.169 Instead, it requires coordination with the CA, OSJA, and the G-8 or resource manager.170 The expert must file a Standard Form 1034: A Public Voucher for Purchases and Services Other Than Personal.171 To substantiate the form, and to “establish auditability and to validate entitlement systems and payment records, a copy of all supporting documentation must accompany each payment request.”172 Substantiating documents must include the basis for the entitlement, including an “authority for reimbursement, . . . value, timing, and funding source.173 The form also requires an “invoice, binding agreement, receipts, and approved purchase or entitlement authorization and certification of funds document.”174 The certifying official at the G-8 must also document their approval.175 The FMR requires a Taxpayer Identification Number176 before the miscellaneous obligation package is forwarded to DFAS and a disbursing officer for payment in the General Fund Enterprise Business System.177

To further understand these forms and processes, the Army can look to the other Services.

Sister Services

The Air Force updated their regulation, Air Force Instruction 51-207, in 2022 to continue its reliance on MP, which began as early as 2017.178 The Air Force (and Space Force) complies with RCM 703179 and memorializes the approved terms of employment in a memorandum of agreement (MOA) for expert witnesses.180 A sample MOA is provided in the Appendix. This MOA satisfies the “binding agreement” that is required to substantiate the MP.181 To process payment, the Air Force uses SF 1034.182 The entire process involves the CA, the staff judge advocate (and their staff), the expert, and the finance/G-8 office (for the certifying official and the disbursing officer).183

The Air Force and Space Force are not alone in using this process; the Navy and Marine Corps also operate similarly. The Navy and Marine Corps184 updated JAG Instruction 5800.7G, the Manual of the Judge Advocate General, in February 2022 to continue their reliance on MP, which began as early as 2012.185

Should an MJP desire to use MP instead of contracting, looking to sister Services’ long-standing practices (particularly the Air Force’s binding agreement in the Appendix) may aid the transition. However, understanding the purposes, processes, and players in contracting should facilitate the MJP’s ability to expedite movement of contract actions.

Conclusion

Obtaining experts does not have to be a source of mystery, friction, or delay for MJPs. Once the processes and expectations are set, MJPs can take many actions to diligently prevent a continuance. Each of the hiring methods is a tool to obtain expert assistance that helps the system run efficiently and effectively. In the pursuit of justice, and with liberty at stake, practitioners should be well-informed to fully utilize these important tools. TAL

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MAJ Browning is the Brigade Judge Advocate with 16th Military Police Brigade at Fort Liberty, North Carolina.

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Notes

1. Email from Colonel G. Bret Batdorff, Chief Cir. Judge, 2d Jud. Cir., U.S. Army Trial Judiciary, to author (Dec. 5, 2022, 12:24 PM) (on file with author).

2. United States v. Grindstaff, No. 20200315, 2022 WL 4008733, at *4 (A. Ct. Crim. App. Aug. 30, 2022).

3. See id.

4. Id.

5. UCMJ art. 10 (2016); Manual for Courts-Martial, United States, R.C.M. 707 (2019) [hereinafter MCM] (requiring the accused to be brought to trial within 120 days of preferral or other triggering events).

6. See United States v. Tinsley, 81 M.J. 836, 840 (A. Ct. Crim. App. 2021) (quoting United States v. Turner, 28 M.J. 487, 488 (C.M.A. 1989)) (“[I]n trials where expert testimony is central to the outcome, a defendant must be provided expert assistance.”).

7. United States v. Weisbeck, 50 M.J. 461, 465–66 (C.A.A.F. 1999), rev’d on other grounds, 58 M.J. 287 (C.A.A.F. 2003) (finding military judge abused discretion in denying defense’s continuance request to work with expert for “expeditious processing” of the court-martial).

8. See Major Dan Dalrymple, Make the Most of It: How Defense Counsel Needing Expert Assistance Can Access Existing Government Resources, Army Law., May 2013, at 35, 41–42.

9. Id. at 42 (“As members of the military, or even federally employed [Civilians], the cost of their involvement amounts to little more than a [TDY] assignment.” (citing 5 U.S.C. § 5537)).

10. See generally id.

11. See id. at 35.

12. See generally 31 U.S.C. § 1341. An unauthorized commitment is “an agreement that is not binding solely because the Government representative who made it lacked the authority to enter into that agreement on behalf of the Government.” FAR 1.602-3(a) (2022).

13. FAR 1.602-3 (2022). Ratification of unauthorized commitments “means the act of approving an unauthorized commitment by an official who has the authority to do so.” Military justice practitioners (MJPs) should avoid these; therefore, they are not covered in this article.

14. A person with authority must obligate the funds for the expert. 31 U.S.C. § 1341(a)(1) (2022); U.S. Gov’t Accountability Off., GAO-16-463SP, Principles of Federal Appropriations Law ch. 2, sec. A.1, at 2-1 (4th ed. 2016) [hereinafter GAO Red Book]. Without a proper obligation of funds, among other things, an investigation may be necessary to determine if there is a violation of the Antideficiency Act (ADA). An ADA violation requires notification to Congress. 31 U.S.C. §§ 1341, 1351. Additionally, improper acceptance of voluntary services is prohibited. 31 U.S.C. § 1342; see also U.S. Dep’t of Army, Reg. 608-1, Army Community Service para. 5-9 (19 Oct. 2017) [hereinafter AR 608-1].

15. This scenario from 2022 is anonymized to minimize potential embarrassment to any counsel.

16. A method to prevent this situation is discussed below. This primer does not answer the question of how this exact scenario was resolved, but it does seek to prevent it from happening again.

17. It might surprise MJPs to learn that while convening authorities (CAs) sign purchase requests, they are not vested with the authority to sign contracts. Only “contracting officers have authority to enter into, administer, or terminate contracts . . . . Contracting officers may bind the Government only to the extent of the authority delegated to them.” FAR 1.602-1 (2022). As a practice point, contracts can be written for an entire year rather than for specific trial dates.

18. Batdorff E-mail, supra note 1.

19. Id.

20. Id.

21. Stakeholders include but are not limited to the CA, the G-8, the contracting office, and the Office of the Staff Judge Advocate (OSJA) legal administrator. See infra Section titled “Stakeholders.”

22. Interview with Chief Warrant Officer 3 Shaniqua Coley, Instructor/Writer, Leadership Ctr., The Judge Advoc. Gen.’s Legal Ctr. & Sch., U.S. Army, in Charlottesville, Va. (Oct. 24, 2022) [hereinafter Oct. 24 Coley Interview]. Ms. Coley facilitated seventy-five contracts for the 3d Infantry Division at Fort Stewart, Georgia. She discussed using miscellaneous payments with the G-8 during her tenure. Id.

23. Id.

24. Email from Lieutenant Colonel Steven Schnurr, Assistant Chief of Staff, G-8, 25th Infantry Div., Schofield Barracks, to author (Dec. 5, 2022, 2:33 EST) (on file with author).

25. Id.

26. See id.

27. Fiscal law requires that expenditures are proper in three ways: (1) time money spent for a bona fide need during that fiscal year, (2) purpose of expenditure, and (3) amount. See 31 U.S.C. § 1502. The fiscal year runs from 1 October to 30 September. 31 U.S.C. § 1102. For a full treatment of this topic, please see Matthew H. Solomson, Chad E. Miller & Wesley A. Demory, Fiscal Matters: An Introduction to Federal Fiscal Law & Principles, Briefing Papers, June 2010, at 1.

28. Competition in Contracting Act of 1984, Pub. L. No. 98-369, §§ 2701–2753, 98 Stat. 494, 1175–1203 (codified as amended in various sections of 10 U.S.C. and 41 U.S.C., among others).

29. The Federal Acquisition Regulation (FAR), codified at Title 48 of the Code of Federal Regulations (C.F.R.) parts 1 through 53, governs acquisitions of goods and services by executive agencies. See Erika K. Lunder et al., Cong. Rsch. Serv., R42826, The Federal Acquisition Regulation (FAR): Answers to Frequently Asked Questions ٧ (٢٠١٥). The FAR governs the management of contracts procured under FAR-based methods. Id. For ease of access, this primer will largely refer to the FAR, the Defense FAR (DFARS), and the Army FAR (AFARS) sections and not the C.F.R.

30. For example, there are at least four other ways to procure expert services. Indefinite Delivery, Indefinite Quantity Contracts, U.S. Gen. Servs. Admin., https://www.gsa.gov/small-business/register-your-business/explore-business-models/indefinite-delivery-indefinite-quantity-idiq (last visited Feb. 25, 2023) (explaining that the General Services Administration uses indefinite delivery, indefinite quantity (IDIQ) contracts for architecture, engineering, and other services); FAR 13.303-1 (2022) (blanket purchase agreements (BPA)); FAR 16.703(a) (2022) (basic ordering agreements (BOA)); FAR 38.101(a) (the Federal Supply Schedule program, pursuant to 41 U.S.C. § 152(3)).

31. See generally DFARS 213.270 (Dec. 2022); AFARS 5113.270-90 (Nov. 7, 2022).

32. U.S. Dep’t of Def., 7000.14-R, DoD Financial Management Regulation vol. 10, ch. 12, para. 1.2 (May 2022) [hereinafter DoD FMR].

33. E.g., U.S. Const., amends. IV, V, VI; UCMJ arts. 10 (right to speedy processing while confined), 31 (right against self-incrimination) (2019).

34. UCMJ art. 46 (2019).

35. See 31 U.S.C. § 1342; AR 608-1, supra note 14.

36. U.S. Const., art. I, § 9, cl. 7; see also GAO Red Book, supra note 14, ch. 1, sec. A, at 1–4.

37. Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 425 (1990).

38. 31 U.S.C. § 1341.

Except as specified in this subchapter or any other provision of law, an officer or employee of the United States Government . . . may not—(A) make or authorize an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation; [or] (B) involve either government in a contract or obligation for the payment of money before an appropriation is made unless authorized by law . . . .

Id.; see also GAO Red Book, supra note 14, ch. 1, sec. A, at 1–4.

39. 31 U.S.C. § 1341.

40. 31 U.S.C. § 1351. An investigation is required to determine if there is a violation. See generally id.

41. United States v. Tingey, 30 U.S. 115, 125 (1831) (“It is an incident to the general right of sovereignty; and the United States being a body politic may, within the sphere of the constitutional powers confided to it, . . . enter into contracts not prohibited by law, and appropriate to the just exercise of those powers.”).

42. Competition in Contracting Act of 1984, Pub. L. No. 98-369, §§ 2701–2753, 98 Stat. 494, 1175–1203 (codified as amended in various sections of 10 U.S.C. and 41 U.S.C., among others).

43. Id. § 2723(a)(1)(C) (codified as amended at 10 U.S.C. § 3201).

44. 41 U.S.C. § 3301(a)(1).

45. FAR 1.102(a) (2022).

46. FAR 1.102(b) (2022).

47. See 41 U.S.C. § 3301(a)(1), (c). For further discussion, see infra Section titled “Market Research and Sole Source Justification.”

48. See FAR 6.302-3(a)(2)(iii) (2023).

49. AFARS app. EE, para. 6-14, tbl.1-2 (Aug. 9, 2023) (“Non-recurring services involve one-time, unpredictable, or occasional requirements, and may be purchased with the GPC up to the MPT whenever a requirement occurs.” If any doubt exists as to which category a service falls under, the cardholder shall consult with the local contracting office for a written determination.”).

50. AFARS app. EE, para. 1-7 (Aug. 9, 2023). For example, a cardholder cannot use a Government purchase card (GPC) for monthly lawn maintenance.

51. U.S. Army Fin. Mgmt. Command, U.S. Army Miscellaneous Payments Standard Operating Procedure (SOP) and Guide (2 Mar. 2022) [hereinafter Army MP SOP].

52. DoD FMR, supra note 32, vol. 10, ch. 12, para. 1.2.

53. DoD FMR, supra note 32.

54. U.S. Dep’t of Def., Guidebook for Miscellaneous payments 35 (Dec. 2021) [hereinafter MP Guidebook] (explaining that “Expert Witness Fees” apply to a “[n]on-Federal employee subpoenaed for any legal proceedings to provide expert testimony . . . approved by a convening authority to testify at court[s]-martial[]”).

55. This provision provides for payment for expert fees for a prevailing party in a civil action brought by or against the United States or any agency or any official of the United States. 28 U.S.C. § 2412.

56. 31 U.S.C. § 1301(a).

57. Id.

58. Sec’y of Interior, B-120676, 34 Comp. Gen. 195 (1954). 31 U.S.C. § 3325 allows agencies to make payments with “vouchers,” which are different from “contract vouchers” under 10 U.S.C. § 4602.

59. Matter of: Daniel K. Inouye Asia-Pacific Center for Security Studies—Use of Appropriated Funds to Purchase COVID-19 Self-Test Kits, B-333691, 2022 WL 370940 (Comp. Gen. Feb. 8, 2022).

60. Id.

61. Consolidated Appropriations Act, 2023, Pub. L. No. 117-328, tit. II, 136 Stat. 4459, 4569 (2022); see also Consolidated Appropriations Act, 2022, Pub. L. No. 117-103, tit. II, 136 Stat. 49, 157.

62. President Harry S. Truman signed the Regulations Supplementing the Manual for Courts-Martial into effect in 1951. Exec. Order No. 10214, 16 Fed. Reg. 1303 (1951). Paragraph 116 says, “When the employment of an expert is necessary during a trial by court-martial, the trial counsel . . . [will] request the convening authority to authorize such employment and to fix the limit of compensation to be paid the expert.” Id. at 1358.

63. 32 C.F.R. § 534.3(f) (1961).

64. MP Guidebook, supra note 54, at 95 (citing 32 C.F.R. § 534.2 as authority for “Witness Fees”).

65. UCMJ art. 46(a) (2016).

66. See MCM, supra note 5, R.C.M. 703(d).

67. James N. Inhofe National Defense Authorization Act for Fiscal Year 2023, Pub. L. No. 117-263, sec. 541(c), 136 Stat. 2395, 2580 (2022). This law shifts the authority to authorize experts to the new Office of Special Trial Counsel (OSTC) for select cases. Id.

68. See To MAJ. J. A. Marmon, A-36296, 11 Comp. Gen. 504 (1931). Though a pre-CICA case, expenditures on an expert witness for a general court-martial were a valid use of public funds. Id. 32 C.F.R. § 534.3(f) (Oct. 25, 1961) cites this case and is still law, bolstering the use of MP.

69. FAR 2.101 (2022) (defining “acquisition”). “Acquisition means the acquiring by contract with appropriated funds of supplies or services (including construction) by and for the use of the Federal Government through purchase or lease . . . .” Id. (emphasis added). Acquisition includes “award of contracts, contract financing, contract performance, contract administration, and those technical and management functions directly related to the process of fulfilling agency needs by contract.” Id. (emphasis added). Arguably, the requirements for contracts expressed in 41 U.S.C. § 3301 (for full and open competition) do not apply to MP because Article 46 of the UCMJ falls into the category of non-contractual “procurement otherwise expressly authorized by statute.” 41 U.S.C. § 3301(a). Congress does not require any specific procurement method or justification and approval (J&A) in Article 46. Moreover, the President’s procedures for hiring experts in RCM 703 only require that the CA authorize an expert’s employment and fix their compensation. See MCM, supra note 5, R.C.M. 703(d). However, reasonable minds can differ as to whether an MP is a sole source contract without a proper J&A.

70. MP Guidebook, supra note 54, at 35 (explaining the reimbursement requirements for expert witness fees). The Appendix provides an Air Force binding agreement.

71. Oct. 24 Coley Interview, supra note 22.

72. FAR 6.302-3(b)(3)(i) (2022); AFARS app. EE, para. 6-14, tbl.1-2 (Aug. 9, 2023). For experts that are used over and over, there are several other FAR-based options. One of these options may be a good fit for experts who do not testify or would not be hindered by becoming a “Government-” or “defense-” only witness. The risk of an eviscerating cross-examination of a witness attacking the stock “Government” witness who only works for OSTC must be considered. For example, the U.S. Army Legal Services Agency recently awarded a $41 million IDIQ contract to Deloitte Financial Services LLP for digital forensic investigation experts, among many others. Email from Gazala A. Shaikh, Chief, eDiscovery Div., Dir., Army eDiscovery Program, to author (Mar. 21, 2023, 3:13 PM) (on file with author). To place a task order, click on the FLASH button on the JAGCNet eDiscovery page. Id.

73. AFARS app. EE, para. 6-14, tbl.1-2 (Aug. 9, 2023).

74. FAR 6.302-3(b)(3)(i) (2023).

75. FAR 2.101 (2023) (defining “micro-purchase threshold”).

76. AFARS app. EE, para. 2-7(aa) (Sept. 7, 2023). After submitting the required training, a cardholder (CH) is appointed in the Joint Appointment Module (JAM), an application within Procurement Integrated Enterprise Environment (PIEE). Id. para. 1-5(b). The JAM is the “mandatory enterprise tool for appointing and delegating authority to GPC personnel.” Id.

77. FAR 2.101 (2023) (defining “micro-purchase”).

78. Id. (defining “micro-purchase threshold”); DFARS 213.301(2) (Dec. 2022); AFARS 5113.270-90 (Aug. 9, 2023).

79. AFARS app. EE, para. 6-14, tbl.1-2 (Aug. 9, 2023).

80. Id.

81. See id. app. EE, para. 14-5(a).

82. Id.

83. Id.

84. Id.

85. MCM, supra note 5, R.C.M. 703(d)(1). This will soon change for some offenses under the OSTC. Congress directed the President to prescribe “regulations to ensure that residual prosecutorial duties and other judicial functions of convening authorities, including . . . hiring experts” are transferred to OSTC. James N. Inhofe National Defense Authorization Act for Fiscal Year 2023, Pub. L. No. 117-263, § 541(c), 136 Stat. 2395, 2580 (2022).

86. U.S. Dep’t of Army, DA Form 3953, Purchase Request and Commitment Sheet (Mar. 1, 1991).

87. AFARS app. EE, para. 6-2 (Aug. 9, 2023).

88. MCM, supra note 5, R.C.M. 703(d)(1).

89. United States v. Gonzalez, 39 M.J. 459 (C.M.A. 1994). For the purposes of this primer, a “formal appointment” is when the CA has authorized an expert to be a consultant or witness for the entirety of the case. This can occur upon request of the parties under RCM 703(d)(1) or by order of a military judge after a motion for employment of an expert under RCM 703(d)(2).

90. MCM, supra note 5, R.C.M. 703(d)(1).

91. AFARS app. EE, fig.2-2 (defining “cardholder”).

92. See Gonzalez, 39 M.J. at 461 (internal citations omitted). This is similar to but also different from “market research” under the FAR. Market research helps “determine if sources [are] capable of satisfying the agency’s requirements,” which is akin to researching and asking for resumes. FAR 10.001(a)(3)(i) (2023). However, “agencies should not request potential sources to submit more than the minimum information necessary.” Id. 10.001(b).

93. See 31 U.S.C. § 1341. This was discussed in the Introduction.

94. Volunteering services to the Government is prohibited absent narrow exceptions. 31 U.S.C. § 1342.

95. MCM, supra note 5, R.C.M. 703(d).

96. Gonzalez, 39 M.J. at 460–61 (internal citations omitted).

97. See United States v. Bresnahan, 62 M.J. 137, 143 (C.A.A.F. 2005) (citing Gonzalez, 39 M.J. at 461); United States v. Freeman, 65 M.J. 451, 458 (C.A.A.F. 2008).

98. Bresnahan, 62 M.J. at 143.

99. Id.

100. See generally MCM, supra note 5, R.C.M. 703(d). Any request should list both as options.

101. The invoice terms for an initial consultation require careful consideration and explanation to the expert. The expert is not formally appointed, and their compensation is capped without further approval. See MCM, supra note 5, R.C.M. 703(d); AFARS app. EE, para. 6-14, tbl.1-2 (Aug. 9, 2023). If there are travel costs with the expert’s consultation fees, then the total cost must remain under $2,500 to prevent a split purchase.

102. See supra notes 81-84 and accompanying text.

103. DoD FMR, supra note 32.

104. Oct. 24 Coley Interview, supra note 22. Reliance on contracts is typically due to G-8 preference. Id.

105. See Competition in Contracting Act of 1984, Pub. L. No. 98-369, §§ 2701–2753, 98 Stat. 494, 1175–1203 (codified as amended in various sections of 10 U.S.C. and 41 U.S.C., among others).

106. G-8, U.S. Army, https://army.mil/g-8 (last visited Sept. 12, 2023) (describing “Mission and Roles”).

107. Id.

108. U.S. Dep’t of Army, Reg. 27-1, Judge Advocate Legal Services para. 3-7 (24 Jan. 2017).

109. Oct. 24 Coley Interview, supra note 22.

110. Id.

111. FAR 1.604 (2023).

112. Oct. 24 Coley Interview, supra note 22.

113. See FAR 1.602-1 (2023).

114. Id.

115. Oct. 24 Coley Interview, supra note 22. Some work at other types of contracting offices. Id.

116. FAR 2.101 (2023) (defining “contracting office”). Contracting officers have support, like paralegals are to attorneys, who help administer contracts. They are called contracting specialists.

117. See FAR 6.301 (2023).

118. See FAR pt. 11 (2023).

119. UCMJ art. 22 (2012).

120. Id.

121. MCM, supra note 5, R.C.M. 703(d)(1). See supra note 67 (describing recent changes with OSTC).

122. See U.S. Dep’t of Army, Reg. 600-20, Army Command Policy para. 1-6(b) (24 July 2020) [hereinafter AR 600-20].

123. Id. para. 1-6(a).

124. See UCMJ art. 22 (2012).

125. See FAR 1.602-2 (2023). Commanders have different authority than KOs. One of the few references to contractors in Army Command Policy is regarding how commanders have no authority over contractors who have prohibited relationships with trainees. AR 600-20, supra note 122, para. 4-15(e)(3). This provision highlights the distinction between command and contract authority. Contract officers alone hold authority over contracts. See FAR 1.602-2 (2023).

126. 41 U.S.C. § 3304(a)(3)(D); accord FAR 6.302-3(a)(2)(iii) (2023).

127. FAR 6.302-3(b)(3)(i) (2023).

128. Id. 6.302-3(c).

129. See id.; FAR 6.304 (2023).

130. Like MP and GPCs, expenditures on experts require CA, OSTC, or court approval.

131. Oct. 24 Coley Interview, supra note 22.

132. FAR 6.303-1 (2023).

133. FAR 5.202(a)(14) (2023).

134. See id.

135. FAR 10.001(a)(2)(ii), 10.002(b) (2023). Market research “determine[s] if sources [are] capable of satisfying the agency’s requirements.” FAR 10.001(a)(3)(i) (2023).

136. See FAR 6.303-2(c) (2023).

137. FAR 37.601 (2023).

138. FAR 37.602 (2023).

139. Oct. 24 Coley Interview, supra note 22.

140. The curriculum vitae may also be used for the Government to select an adequate substitute for the requested expert. See MCM, supra note 5, R.C.M. 703(d)(2)(A)(ii) (allowing the Government to offer an adequate substitute).

141. MCM, supra note 5, R.C.M. 703(d)(1) (requiring an estimate of costs be presented to the CA to affix compensation); U.S. Dep’t of Army, Reg. 27-10, Military Justice paras. 5-33(e), 6-5, 28-8 (20 Nov. 2020); see Oct. 24 Coley Interview, supra note 22. Ensure compensation plans for travel days.

142. Oct. 24 Coley Interview, supra note 22.

143. See United States v. Bresnahan, 62 M.J. 137, 143 (C.A.A.F. 2005).

144. 31 U.S.C. § 1351; see supra note 12 and accompanying text on unauthorized commitments.

145. See FAR 1.602-1 (2023).

146. Interview with Chief Warrant Officer 3 Shaniqua Coley, Instructor/Writer, Leadership Ctr., The Judge Advoc. Gen.’s Legal Ctr. & Sch., U.S. Army, in Charlottesville, Va. (Mar. 9, 2023) [hereinafter Mar. 9 Coley Interview].

147. U.S. Dep’t of Army, DA Form 3953, Purchase Request and Commitment Sheet (Mar. 1, 1991) (requiring a line of accounting from the G-8); Oct. 24 Coley Interview, supra note 22. This is a best practice. The CA is the last signature after G-8, so if the staff judge advocate is recommending approval of the expert request, it is prudent to complete the form so that both the form and approval can be signed contemporaneously.

148. See supra Sections titled “Government Purchase Card Process” and “Initial Consultation to Determine ‘Necessity’ for Experts” regarding CA and OSTC approval processes.

149. Oct. 24 Coley Interview, supra note 22. While different offices may work in different ways, Fort Stewart, Georgia, used this process. Paralegals and legal administrators complete the sole source justification along with a Contract Requirements Package Antiterrorism/Operations Security Review Coversheet, a Quality Assurance Surveillance Plan, and a Request for Services Contract Approval (RSCA). Oct. 24 Coley Interview, supra note 22; U.S. Dep’t of Army, RSCA (May 2017), http://www.asamra.army.mil/scra/documents/RSCA%20Version%202.0.pdf. At Fort Stewart, the Division Acquisition Review Board (DARB) met once a year and approved an RSCA for all court-martial expert contracts under a certain dollar threshold for that year. Mar. 9 Coley Interview, supra note 146. Otherwise, the DARB may meet at a frequency (such as monthly) that may cause delay.

150. Oct. 24 Coley Interview, supra note 22. Ms. Coley recommends training everyone from the MJPs to the MICC so stakeholders can meet and understand their roles in the process. Id. The most common errors in the paperwork were failing to update names or miscalculating hours. Id.

151. Oct. 24 Coley Interview, supra note 22.

152. The Procurement Integrated Enterprise Environment is home to the Wide Area Workflow. See About PIEE, Procurement Integrated Enter. Env’t, https://piee.eb.mil (last visited Sept. 13, 2023); Sys. for Awards Mgmt., https://SAM.gov (last visited Sept. 13, 2023) (explaining that users also need a unique entity ID (formerly a Data Universal Numbering System number) that SAM.gov generates).

153. The threshold is $250,000 except generally for commercial and contingency operations. FAR 2.101 (2023) (defining “simplified acquisition threshold”).

154. The simplified acquisition procedure “means the methods prescribed in [FAR] part 13 for making purchases of supplies or services.” FAR 2.101 (2023) (defining “simplified acquisition procedures”). Broadly, simplified acquisitions combine synopsis and solicitation periods or allow a reasonable opportunity to respond with solicitations for non-commercial items and are usually set aside for small or disadvantaged businesses. See FAR 13.003 (2023). However, none of these procedures apply to experts.

155. Oct. 24 Coley Interview, supra note 22.

156. Id.

157. See FAR pt. 43 (2023) (“Contract Modifications”); Oct. 24 Coley Interview, supra note 22.

158. See supra Section titled “The Constitution and Separation of Powers.”

159. FAR 42.1501(b) (2023) (“Agencies shall . . . use [CPARS] metric tools to measure the quality and timely reporting of past performance information. CPARS is the official source for past performance information.”). This system is unavailable for MP because the experts are not contractors.

160. Oct. 24 Coley Interview, supra note 22.

161. Id.; see Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201-19; 29 C.F.R. § 778 (2023).

162. Oct. 24 Coley Interview, supra note 22.

163. Id.

164. Id.

165. See supra Section titled “Miscellaneous Payments” (covering the statutory and regulatory authority for MP).

166. Oct. 24 Coley Interview, supra note 22.

167. However, some of this risk is mitigated by the fact that the MJP community and Judge Advocate General’s Corps are not as large as the Federal Government as a whole. Word of mouth aids in market research, which lowers the risk of unknown experts failing to perform. Additionally, if the expert does not perform, then they are not entitled to payment, which in most cases should be sufficient to ensure performance.

168. See U.S. Dep’t of Air Force, Instr. 51-207, Victim and Witness Rights and Procedures para. 7.14 (1 Feb. 2023) [hereinafter AFI 51-207]; U.S. Dep’t of Navy, JAGINST 5800.7G, Manual of the Judge Advocate General (JAGMAN) sec. 0146(k)(1) (14 Feb. 2022) [hereinafter JAGMAN]; Memorandum from Sec’y of Air Force to U.S. Space Force Field Commands, subject: United States Space Force Military Justice, Administrative Matters, and Legal Support Matters (20 Oct. 2020).

169. MP Guidebook, supra note 54, at 3 (“An authorized miscellaneous payment is not initiated by a contract or task order and is generally a one-time occurrence for which the government receives benefit.”).

170. Oct. 24 Coley Interview, supra note 22.

171. U.S. Gen. Servs. Admin., SF Form 1034, Public Voucher for Purchases and Services Other Than Personal (Oct. 1987).

172. DoD FMR, supra note 32, vol. 10, ch. 12, para. 1.2.2.

173. Id.

174. MP Guidebook, supra note 54, at 35 (explaining the reimbursement requirements for “Expert Witness Fees”); accord Army MP SOP, supra note 51, apps. 6, 12.

175. DoD FMR, supra note 32, vol. 10, ch. 12, para. 1.2.4.

176. Id. vol. 10, ch. 12, para. 1.2.6.

177. Id. vol. 3, ch. 8, para. 4.2.6; Army MP SOP, supra note 51, apps. 6, 12 (describing the Army’s use of the General Fund Enterprise Business Systems for experts). Accountable officials, such as disbursing officers (DOs) and certifying officers (COs), are subject to pecuniary liability. DoD FMR, supra note 32, vol. 5, ch. 5, para. 1.1.1, ch. 6, para. 1.3. Remembering this is key when any process seems to take time. Those authorizing the payment could be personally liable, so they want to ensure proper processing.

178. See AFI 51-208, supra note 168, para. 7.14. The now-obsolete regulation establishing this process is U.S. Dep’t of Air Force, Instr. 51-201, Administration of Military Justice para. 6.4.10, fig.A6.6 (8 Dec. 2017).

179. See AFI 51-208, supra note 168, para. 7.14.

180. Id.; see also Judge Advoc. Gen.’s Corps, U.S. Dep’t of Air Force, AF/JAJM Central Witness Funding Guide para. 5.1 (5 May 2022).

181. See MP Guidebook, supra note 54, at 35 (explaining reimbursement standards for “Expert Witness Fees”).

182. AFI 51-207, supra note 168, para. 9.8.

183. See id.

184. Email from Marine Corps Chief Warrant Officer 2 Ryan J. Cole, Legal Administrator, Legal Services Support Team, Twentynine Palms, Cal., to author (Feb. 2, 2023, 12:59 PM) (on file with author). Mr. Cole has processed military justice experts for three years. They treat expert services as “non-severable services” to prevent fiscal year crossover. Id. The Marine Corps uses PIEE and requires the expert to have an existing account in SAM.gov with an active Commercial and Government Entity code. Id.

185. JAGMAN, supra note 168, sec. 0146(k)(1). The now-obsolete regulation that established this process is U.S. Dep’t of Navy, JAGINST 5800.7F, Manual of the Judge Advocate General para. 0146 (26 June 2012). Their process is: “An expert witness employed in strict accordance with RCM 703(d), MCM, may be paid compensation . . . . After an expert witness has testified pursuant to such employment, the certificate of the [trial counsel]” will be presented to the disbursing officer and CA. JAGMAN, supra note 168, sec. 0146 (k)(3) (citing To MAJ. J. A. Marmon, A-36296, 11 Comp. Gen. 504 (1931) to bolster its legal basis for non-contract payment).

Appendix

MEMORANDUM OF AGREEMENT

FOR

EMPLOYMENT OF CIVILIAN EXPERT WITNESS

1. (Doctor)(Mr.)(Ms.) is hereby retained as an expert witness to provide review, analysis, consultation, and testimony, as needed, in the court-martial case of United States v. , on behalf of the (Government) (Defense). The witness is an expert in the field of .

2. The expert witness agrees to provide the following services:

a. Review all documentation relevant to the area of expertise which pertains to the guilt or innocence of the accused, and which has been provided by the (trial counsel) (defense counsel).

b. Act as an expert technical consultant for the (Government) (Defense).

c. Assist the (trial counsel) (defense counsel) to prepare for the expert witness’s in-court testimony, and to be available for a pretrial interview by opposing counsel.

d. Travel to the location of the trial on invitational travel orders and to testify on behalf of the (Government) (Defense), and, if requested by the (trial counsel) (defense counsel), to observe and evaluate the testimony of any expert witness for the opposing side.

e. Provide a copy of the expert’s resume or curriculum vitae to the (trial counsel) (defense counsel).

f. Submit a Government travel voucher for payment, following the instructions provided, and accompanied by required documentation of travel, lodging, and other expenses.

g. Certify that the fee charged for expert services is no greater than the expert’s normal professional rate.

3. The Government agrees to pay the expert witness, as follows:

a. Reimbursement for actual travel costs, either coach air travel or mileage, according to the Joint Travel Regulations.

b. Per diem for meals, and the lesser of actual cost of lodging or the Government local lodging rate, including payment for all travel days, according to the Joint Travel Regulations.

c. A fee of $ per day for in-court testimony.

d. A fee of $ when professional advice and services are rendered, but no travel or in-court testimony is involved.

e. An inconvenience fee of up to $ if the travel and testimony of the expert witness is canceled or rescheduled within five (5) days prior to the expert’s scheduled travel day. The witness is expected to reasonably mitigate any financial loss caused by cancellation. Consequently, this fee is to be reduced to the extent other gainful activities may be undertaken. The expert witness must provide written substantiation in the form of demonstrable actual inconvenience and financial loss to support payment of an inconvenience fee.

4. [Optional: If the Defense requested and the convening authority granted confidentiality to the expert, add: Discussions between the expert witness and the defense counsel, the accused, and any member of the Defense team regarding this case are confidential. However, if the expert witness is called as a witness by the Defense, the content of those conversations may, subject to the Military Rules of Evidence, lose confidential status.]

5. Payment will be under Defense Finance and Accounting Service-Denver/Air Force Interim Guidance, Procedures for Travel Accounting Operations, July 2001, section 5, part U.

Signed by the parties on the dates entered below:

Staff Judge Advocate (Date)

Expert Witness (Date)