The Army Lawyer | Issue 3 2021View PDF

null Deploying as a Fiscal Law Judge Advocate

The 412th Contracting Support Brigade command judge advocate discusses common legal issues in contracting during an operational contract support joint exercise. (Credit: SSgt Jonathan Snyder)

Practice Notes

Deploying as a Fiscal Law Judge Advocate

What to Expect and How to Succeed


Just as you start to get comfortable as a newly-minted judge advocate (JA) practicing administrative law, your deputy staff judge advocate calls you into their office. They sit you down and say you are going to deploy with the division headquarters as a fiscal law attorney. As you leave their office you say, “thank you” and that you are “looking forward to such a great opportunity.” You slump back down into your chair, put your forehead on your desk, audibly groan, and think, “What the heck is fiscal law?

This scenario plays out frequently in many corps and division staff judge advocate (SJA) offices as they prepare to deploy. Most garrison SJA offices use non-deployable civilians for contract and fiscal law positions. This means active duty JAs are not frequently exposed to fiscal law as captains. This also means deploying SJAs will frequently task captain JAs as fiscal law attorneys, when the captains may not actually know the fundamental difference between contract law and fiscal law.1 However, U.S. Army JAs are flexible and accustomed to learning new disciplines in short periods of time. This article discusses preparation strategies for the new Army fiscal law JA, what to expect in the job, practical considerations, and tips for a successful deployment.

Preparation for Deployment

First, start thinking about purpose, time, and amount (PTA). Once you know you will deploy as a fiscal law JA, ask your SJA to send you to the fiscal law course at The Judge Advocate General’s Legal Center and School. Unless you recently graduated from the Officer Basic Course, you probably have not reviewed fiscal law in a while. This course will get you back to the fundamentals of fiscal law, refresh your understanding of the basic PTA requirements, and provide practical application of some fiscal law issues. You will also receive the latest version of the fiscal law deskbook.2 This course also reviews the various appropriations and authorizations available to the major theaters of operation (i.e., U.S. Central Command). As you will see, fiscal law is a team sport, and this course is a great opportunity to start building your informal network of fiscal law JAs that you can use as a sounding board. If you have the time, and your SJA agrees, you may also want to attend the contract attorney’s course held every July. Your deployment may demand that you be familiar with contract structure, language, and methods. If you are unable to attend either course, fear not; you can view a pre-recorded version of many of these courses on the Judge Advocate General’s University (JAGU) website.3

The next step is to contact the counterparts currently in the position you will take over. You will most likely deploy to an area where a JA is already there, doing your job. Try to schedule a call with your counterpart, and have a list of questions ready. This conversation should expand your understanding of the real-world requirements of your new job, the command’s mission, and provide a more in-depth knowledge of the authorities available to your command. You should ask about: 1) unique issues they are encountering; 2) the appropriations and authorities they are using; 3) what the battle-rhythm is like; 4) whether you will be able to overlap and observe them for any time period; and 5) what you should bring with you. The most important question to ask might be, “What do you wish you knew prior to deploying?” Be sure to ask if they can send you an example of a legal review they recently drafted, along with the primary documents they used to write the review.4 This will give you a more practical understanding of what the job will entail.

Next, seek out and introduce yourself to the Soldiers deploying with you from your command’s G-4 (logistics), G-8 (comptroller), and engineer sections. Chances are, these are the individuals you will work with the most. They are also the people who hold the information you will need to draft your legal reviews. Building positive relationships with them early on will make your job much easier. Likewise, locate and contact the Regional Contracting Office (RCO)5 and servicing Contracting Support Brigade (CSB)6 responsible for your area of operations (AO). While CSBs are responsible for military contracting actions theater-wide, an RCO manages procurements in a particular geographic area within that theater. Many fiscal issues can blend with contract law, and building a relationship with your local RCO’s commander7 and CSB’s command judge advocate (CJA) will help you advise your commanders. Once you are in the position, the CJA will likely be an experienced, trusted, and frequent sounding board for legal issues in your AO. The CJA and the RCO will also be great resources to find the answers to your command’s procurement questions—for instance, “How soon can I get my stuff?”

Finally, if you are at a division-level command or higher, become familiar with your command’s operational contracting support plan8 and the personnel assigned to this function. Doctrinally, they will come from the G-4 section, but this may not always be the case. Operational contract support (OCS) is a relatively new concept and term in Joint Doctrine9 and is intended to integrate the “entire process of planning and executing contract support in contingencies” from the requiring activity’s10 (RA’s) procurement request to contract close-out.11 While these OCS personnel are deployed, they will be part of an Operational Contracting Support Integration Cell (OCSIC).12 The OCSIC is responsible for shepherding requirements, and they should require your legal review as part of their packet to the Requirement Review Boards.13

What to Expect in the Job

Normally, your responsibilities will entail drafting written fiscal legal reviews for procurement requirements in your area and advising requirement approval boards. However, in order to do your job effectively you will need to educate and gain the trust of those you work with. You will also need to learn to speak their language. For example, the contracting officer might classify a purchase of building materials as a “supply” purchase. However, in a fiscal law context, you would classify the requirement based on what the RA is actually building with those materials—i.e., “construction.” Your understanding of these subtle differences in perspective will help you draft your legal reviews, educate stakeholders, and gain credibility. You will also find most requirement requests are legitimate; however, you will need to help the RA articulate the justification in plain language. Without building these relationships and gaining trust, you will not have the required information to write a competent legal review—think “protection for your command”; likewise, those with the information will not know to give it to you.

You are a teacher. Know your craft. Expect some people may have little to no prior experience in their specific roles, and they will come to the JA for many answers. Normally, a garrison command would have a full-time professional Department of Public Works office, and these professionals know the laws and regulations. However, many of the people filling the deployed roles are doing it for the first time, or they come from different positions and disciplines. Take every opportunity to teach the elements of your command about fiscal law and explain why it is important to them. Some common issues on which to educate your counterparts include: the systems analysis for investment items, the expense/investment threshold, split requirements, and funded versus unfunded costs related to construction.

In addition to the PTA limitations, you will also have multiple layers of internal withholding policies, delegations of authority, and policy memos. For example, the Combatant Commander will likely have delegated the authority to approve construction projects up to a certain cost to your commander. Each of these delegations will determine who the appropriate approval authority is based on the cost of the project. Pay special attention to the withholding policies. These will mandate the approval authority for certain sensitive procurements or extra steps required for the approval. These frequently involve re-locatable buildings, non-tactical vehicles, communications equipment and SIM cards, and overseas property disposal.

Obtain a copy of these documents early, compile them into a user-friendly chart, and update the chart frequently. This will help you organize all of the requirements and approval authorities in your AO. The chart will be a great way to demonstrate your added value early on, and it will aid in your ability to teach. Many established AOs also have a document, or set of documents, detailing a theater’s particular procurement process. Sometimes, these documents are called “Money as a Weapons System” (MAAWS).14 Depending on the AO, this can be a comprehensive document with detailed descriptions of all the financial limitations and authorities in your area. The MAAWS should be a product of your command’s resource manager (G-8) with a detailed review by the SJA office. Either way, obtaining your AO’s applicable documents will help you focus on what is important in your area.

Once you get to your office, if you have not done so already, identify the working groups and approval boards dealing with procurements and construction. For example, the engineers will likely have a working group through which all real property projects requiring a plan or design will first have to pass.15 Each of the higher level commands (division and above) will also have a Requirements Review Board that vets and approves certain requirements based on the internal delegations. If you have one at your command, you will likely sit as a non-voting member and advise the board chairperson. Gaining the trust and confidence of the chairperson will be vital to your role as legal advisor to the board. Keep in mind that it is important to understand and communicate the difference between a restriction of fiscal law and a restriction of fiscal policy. Unlike fiscal law, a restriction of fiscal policy gives commanders the option to request an exception to policy or a waiver by the appropriate approval authority. Your role will extend beyond providing legal advice, and you will frequently be asked about non-legal matters. Your training as an attorney to think critically, evaluate issues logically, and offer solutions will provide valuable insight to these boards and your command.

Practical Considerations

Funding Sources

While deployed to a Contingency Operation,16 the primary source of money your command will use is the Overseas Contingency Operation, Operations and Maintenance (OCO O&M) fund.17 Units may use OCO O&M funds when the mission involves combat or direct combat support operations in Afghanistan, the Persian Gulf, Gulf Nations, or in other specified areas when the expense falls within an authorized funding category, and they are costs the Army would not have incurred absent the contingency operation.18 On the other hand, they will also have regular unit Operations and Maintenance Army (OMA) funds available for expenses consumed in the otherwise normal operating and maintaining of the unit. You will have to uncover all of the relevant facts to determine which fund is appropriate for the requirement. It will also help to remind RAs that equipment purchased using OCO must also remain in theater. Remember, the primary beneficiary for either of these funds must be the U.S. Army, unless a statutory exception authorizes a benefit to foreign forces or civilians.

If the purpose of the requirement is to benefit anyone other than the U.S. military, you will need to consider an alternate funding source. Without an exception, we cannot use OCO O&M or OMA funds to make purchases outright for foreign beneficiaries. However, there are various “Train and Equip” funds, depending on your AO.19 Each of these will have its own approval process and approval authorities, which will require your legal review.

Many U.S. operations are combined with the militaries of partner nations. These forces will frequently request that the United States make purchases intended to benefit them. One exception to the rule against using O&M funds for foreign beneficiaries is the use of an Acquisition and Cross-Servicing Agreement (ACSA). The Department of Defense has these agreements with most partner nations. While not really a “fund,” an ACSA is a bilateral agreement between the militaries of two nations and a useful tool to help our partners obtain logistical support, supplies, and services (LSSS).20 Find the ACSA managers in your AO; they are typically located within the G-4. Similar to a Contracting Officer, only an ACSA manager is authorized to enter the U.S. military into an ACSA transaction. It is important for your commanders to know they do not have the authority to bind the Government in either a contract or an ACSA transaction. They can validate the need, but they may not actually sign a contract or make an order.

Legal Reviews

In drafting your legal reviews, include a background section detailing all known relevant facts supporting the requirement and stipulate the review is valid only for that set of facts. Facts and requirements frequently change. Including this language, and all of the relevant facts from the request in your legal review, will require the RAs to return to you if circumstances change. This is particularly important for the G-8 and RCO, who will eventually pay for and execute the procurement.

Your legal review should be complete prior to an approval authority validating the requirement. Many times, RAs view their requests as time sensitive and will want to fast-track their packet through the process. However, once a requirement is approved, it moves to the contracting entity and out of your view. Should there be some legal objection at this point in the process, the ability to correct the issue is exponentially more difficult than it was prior to the validation step. Educating the OCSIC personnel and the validation authority about the importance of a legal review prior to validation is vital to preventing problems that might endanger mission success. At the same time, understand there will be time sensitive requirements important to your command, and your ability to quickly and effectively respond is important to that success.

Reach Back

Inevitably, you will come across difficult issues. Deployed fiscal law practitioners quickly find there are relatively few reliable sounding boards with fiscal law experience. Luckily, you will have counterparts at the various levels of your command all the way up to your Combatant Command. This is your technical chain of command regarding legal issues, and these counterparts will be your primary lifeline. Identify them early and establish a relationship. Additionally, for particularly difficult issues, the Contract and Fiscal Actions Division (KFAD) at the Office of The Judge Advocate General at the Pentagon is there to support the field. After first using your technical chain of command to grapple with a significant or contentious issue, particularly one affecting your operations or units outside your formation, KFAD is a fantastic collaborative partner with which to work. At a minimum, they can provide substantive feedback on your analysis to get you on the right track. More significantly, however, they can also provide a level of Army-wide context and support that can be a valuable backstop to your legal position or your SJA office.

Five Rules for Success

If you take nothing else from this article, adhere to the following five rules for fiscal law success. First, do not get reckless with legal interpretation. Much like ethics, fiscal law is not an area where you want to push the boundaries of an interpretation. Your commander’s career ultimately depends on running the fiscal mid-field. Second, be consistent and be correct. If you do not know the answer, do not guess. This is especially true if the answer is a “no.”21 Find out, double-check your information, and then get back with them in a timely manner. There is no faster way to lose the trust of your commander than guessing and being wrong. Third, when in doubt, after doing your own research, ask and get top cover. Discuss the issue with your fiscal network, your SJA, and your fiscal counterparts at the various levels of your command. This will also ensure the different level SJAs have one voice on your issue.

Fourth, beware a “just get to yes” mentality and refer back to the first rule. Managing expectations from the start will pay dividends in the end. Become comfortable being the only voice in the room to question the validity of a requirement. Usually the other staff officers at the table just want to execute the commander’s intent. They rarely have the expertise in the law and regulation to know its left and right limits. It is your job to fully and completely inform your commander of the potential risks and limiting factors of their procurement decision.

Finally, be value added. Always teach, coach, and mentor. Reach out and get into the working groups early, where they are developing ideas and working on requests from the field. Educating these people and getting in on the “ground floor” will save a lot of time and future headache for very busy staff sections. This will also make it more likely they will come to you when they spot an issue.

Conclusion

Fiscal law can be challenging. However, it is also rewarding. Proper preparation and expectation management will set the stage for a successful deployment. You will find it to be an enjoyable and meaningful experience. This is especially true when you see how your contribution has a real and direct impact on the mission. Congratulations on your new job. Your command and your SJA are depending on you. TAL


MAJ Elder is a professor in the Contract and Fiscal Law Department at The Judge Advocate General’s Legal Center and School in Charlottesville, Virginia.


Notes

1. Contract law (also known as procurement law) examines the method by which we acquire things, and encompasses the rules for the conduct of the procurement. Fiscal law (also known as appropriations law) deals with the propriety of using an appropriation for a particular expenditure.

2. The current versions of the Fiscal Law Deskbook and the Contract Attorney’s Deskbook are available for download on The Judge Advocate General’s Legal Center and School website. See TJAGLCS Publications, The Judge Advoc. Gen.’s Legal C tr. & Sch., U.S. Army, https://tjaglcs.army.mil/tjaglcs-publications (choose “Deskbooks and Handbooks”; then chose “Contract and Fiscal Law” folder) (last visited June 29, 2021).

3. Cont. & Fiscal L. Dep’t, The Judge Advoc. Gen.’s Legal Ctr. & Sch., U.S. Army, Contract & Fiscal Law Presentations, JAGU (login to jagu.army.mil; then choose “Library”; then “Video Library”; then, “Contract & Fiscal Law Presentations” (last visited Sept. 29, 2020) (note that this source is only available to DoD employees due to the log-in requirement.).

4. They will likely have to request permission to release the documents from their SJA and their client (their command).

5. Usually located closer to your area of operations.

6. For example, the 408th Contracting Support Brigade, located at Camp Arifjan, Kuwait, is responsible for supporting contracting actions throughout most of the Middle East. The Command Judge Advocate for your supporting CSB is also a good contact and resource to know.

7. Who, interestingly, will also likely be a Contracting Officer.

8. See U.S. Dep’t of Def., Instr. 3020.41, Operational Contract Support (OCS) (20 Dec. 2011) (C2, 31 Aug. 2018); U.S. Dep’t of Army, Reg. 715-9, Operational Contract Support Planning and Management para. 2-2(a) (24 Mar. 2017) [hereinafter AR 715-9].

9. Joint Chiefs of Staff, Joint Pub. 4-10, Operational Contract Support (4 Mar. 2019) [hereinafter JP 4-10].

10. The Requiring Activity is the subordinate unit making the procurement request.

11. AR 715-9, supra note 8, para 1-5(a).

12. JP 4-10, supra note 9, at III-1(c).

13. These boards may also be called “Validation Boards,” “Acquisition Review Boards,” “Coalition Acquisition Review Boards,” or a number of other acronyms. Functionally, they are the same in that their purpose is to validate or deny a requested expenditure.

14. See generally Commander Patricia Robinson, CJ8 Financial Management Guidebook for Supporting Combined Joint Task Force (CJTF)–Operation Inherent Resolve (OIR) (18 Jan. 2019) (this document is also called a “CJ8 Financial Management Guidebook” in the Combined Joint Task Force–Operation Inherent Resolve Area of Operations (Iraq and Syria)).

15. See U.S. Dep’t of Army, Pam. 420-11, Project Definition and Work Classification para. 1-6(a) (18 Mar. 2010) [hereinafter DA Pam. 420-11]. This DA Pamphlet is a good resource to know regarding engineer-specific definitions regarding construction, repair, maintenance, and the difference between funded and unfunded costs.

16. A “contingency operation” is a military operation “designated by the Secretary of Defense as an operation in which members of the armed forces are or may become involved in military actions, operation, or hostilities against an enemy of the United States or against an opposing military force,” or one that “results in a call or order to, or retention on, active duty of members of the uniformed services” under various provisions of law. 10 U.S.C. § 101(a)(13).

17. Consolidated Appropriations Act, 2021, 116 Pub. L. No. 260, div. C, tit. IX, div. J, tit. IV (2021).

18. See Off. of the Assistant Sec’y of Army (Fin. Mgmt. & Comptroller), U.S. Dep’ t of Army, Department of the Army Financial Management Guidance for Mobilization and Deployments (7 Oct. 2019) (helping practitioners determine what expenditures are appropriate for OCO and which are appropriate for Base Operation and Maintenance Funds). See also 10 U.S.C. § 101(a)(13) (2020).

19. For example, in Iraq and Syria there is the Counter-ISIS Train and Equip Fund. In Afghanistan, there is the Afghanistan Security Forces Fund. Both are found in the Consolidated Appropriations Act. See Consolidated Appropriations Act, 2021, 116 Pub. L. No. 260 (2021).

20. 10 U.S.C. § 2350 (the term “logistic support, supplies, and services” means food, billeting, transportation (including airlift), petroleum, oils, lubricants, clothing, communications services, medical services, ammunition, base operations support (and construction incident to base operations support), storage services, use of facilities, training services, spare parts and components, repair and maintenance services, calibration services, and port services. Such terms include temporary use of general purpose vehicles and other nonlethal items of military equipment which are not designated as significant military equipment on the United States Munitions List promulgated pursuant to section 38(a)(1) of the Arms Export Control Act (22 U.S.C.S. § 2778(a)(1))).

21. A “no” in this context means a strong recommendation not to proceed with some course of action. This would likely occur when analyzing a restriction of fiscal law, as opposed to fiscal policy. However, it is ultimately the duty of a judge advocate to advise, while it is the command’s duty to decide. Successful judge advocates will be able to help the command develop courses of action, make recommendations, and assess risks associated with each course of action.

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