A Comprehensive Look at the North Atlantic Treaty Organization Mutual Support Act of 1979

• Author: by Captain Fred T Pribble
• Pages: 05

1. INTRODUCTION

   Beginning in the 1970's, Congress pressed the Department of De-fense (DODI to reduce the number of United States forces deployed in the European theater DOD efforts to improve the logistics "tooth-to. taY ratio resulted in significant reductions in the number of combat serv~ce support troops stationed in h r t h Atlantic Treaty Orgamza. tion (NATO) countries. This decrease in U.S. support capability re-sulted m a corresponding increase in reliance by U.S. forces on our NATO allies for logistic support

   Dunng this same time frame. U.S forces acquired and transferred support through the use of highly formahzed procedures Logistic support, supplier, and services were acquired, both from foreign go". ernment and commercial sources alike, by resort to commercial contracting methods and the application of U.S domestic procurement lawe and regulations On the transfer side. provijion of support by U.S. forces in response to allied requests required processing a formal Foreign Military Sales case under the Arms Export Control Act.

   In practice, we of these formalized procedures resulted in aome un.tenable amations for US. forces in training and on exercises with their NATO counterparts. For example, If an American unit on ma-newer8 needed a rank of gasoline from a Dutch umt, a formal contract war required. Conversely, if a Dutch unit was attached to an Amer,can battalion for a couple days training, a formal Foreign Military Sales case had to be processed to provide food and billeting to the Dutch.

   As the frequency of U S requests grew. NATO countries began to abject to the contracting format used by U S farces to acquire support Their objections were baaed upon the ~nelusion of several "offen-

   . . .

   the Nebraska bar

   . . . . .

   51ve' clauses in the contract documents and the U S s rarher dogmatic insistence on applying domestic procurement laws and regulation to transactions conducted in the European theater As support wa requested at the gorernment.ro.government level. the allies felt rha agreements. not contracts, were the proper document format Further smereignty considerations dictated that international agreements. not US domestic lax. should govern theae transaction: Application of formal US Fa n 3hhtary Sales procedures LOs support caused further friction The situation deteriorated to the point that. in the monthsjust prior to Return of Farces to Germany iREFORGER1 1980 the Uetherlands. the Federal Republic ai Germany. Belgium. Italy. and Soriuay mdicated a refusal to prmide support to U.S forces if commercial contracting methods here to be used

   Faced with such widespread rejection to these tradmonal methods of acquiring and transferring support from our allies. DOD made

   sponded. and on August 4, 1980. President Carter aigned into law The NATO Mutual Support Act of 19i9 thereinafter "ShlSA" or "the Act"1

   The NMS.4, as originally enacted. represented a specific grant of authority to DOD to acquire and transfer logistic support. supplies. and serv~ces for the benefit of U.S forces in the European theater In particular, Congress granted DOD special authority to acquire SAT0 host nation support without the need to resort to complex eontracting procedures In addition, It authorized DOD. after consultation with the Department of State to enter into cross.servung agree-ments izith our allies for the reciprocal provision of support This en-abled U S forces to transfer routine logistic support outside Foreign Military Sales channels and. again to acquire support without the need to resort to formal contracting procedures

   In passing the NMSA,

   Congress ciearl) authorized DOD to create a separate. two-tracked system for acqmnng and rransfernng routlne logistic 3upport for European based forces Congress emmaned that this would be a system parallel to. yet worklng ~ntandem with cast-

   Alllance requests for routine log

   several requests to Congress for Ieglslarlve rehf Congress re.

   ~ n g formallzed procurement and transfer procedures

   For reasons largeiy unknown DOD failed to fully seize upon the ImtmtlVes provided by Congress through passage of the NMSA. In. atead, DOD mplementmg regulations proved confusing and overly remlctlve Tragically. the NhlSA authority was "weP LO existlng acqumtion and logistics principles and procedures Servm usage of

   19891 NATO MUTUAL SUPPORT ACT

   the SMSA. as a result. suffered greatly from thls confusm and these """eCeSEarY restnctlons

   This article presents a three-part, in-depth examination of this most important piece of legislation Starting nnh post-World War I1 Europe, the first section of the article ConcentrateS an the changmg relationship between the U S and its European alhes and traces the events leading up to passage of the Act The second part of the article focuses on the Act itself All applicable DOD and Department of the Army IDA' implementing guidance IS incorporated in an attempt to present a comprehensive yet workable picture of the Act for the held practitioner The final section of the article is deroted to a critical analysis of the Act This section focuses on the major problems created by the DOD implementing guidance and addresses some of the current problems encountered in service usage ofthe NMSA Empha-s1s 1s an the problems and expenences of the U S Army Europe and Seventh Army IUSAREURI, the pnmary serr~eu~erof NMSA au-thority Included, wherever appropriate. are suggestions for legisla-tire, regulatory, or pol~cy changes

   11. HISTORICAL BACKGROUND

   1. POST-WORLD WAR II ELROPE

      1 Offshore Procurement Agreements

      Bemeen 1952 and 1958 the U.S concluded a senes offormal agreements with thirteen European countries memo C O U I I I ~ E I ' governing U S procurement of services, supplies, and construction wthm

      See United State9 European Command Defense Acquiiition Reg Supp 6.902 lib8 Apr 19651 [hereinafter ES'DARSI The rountrlei lnvolied and the dater of those agreements are as follors

      11 The Kingdam of Belgmm. 3 September 1953

      2' The Gmernmenf of Denmark, 8 June 1954,

      3' The Republic of France 12 June 1953.

      4' Tho Federal Repnblic of Germany 7 Februar? 1967, 6) The Kingdom orGreece 24 December 1952, 61 The Republic of Italy. 31 bIarih 1954

      I '

      The Grand Duehi of Luxembourg. 17 Apnl 19% 8' The Kingdam of the hetherlands 7 May 1954 9) The Kingdom of harray 10 March 1954,101 The Government of Spam 30 Jvli 1954Ilr The Republic ofTurke). 29 June 196512' Her Malest) Q Gorernment I" the Unnfed Kmgdom of Great Brltaln e m Ireland. 30 October 1962 and

      131 The Eederal People's Republlc of Yugorlavm 18 October 1954 The full rexis of these agreements are reprmted ar EUDARS TABS 1.13

      and North-

      then respectire countries These agreements were executed with countries parncqmmg in the Milnary Assistance Program' and were part of the C S Offshore Acquisition Program' They were designed to further foreign amstance and to provide direct support to U S forces either deployed or conducting exercises in these countries.'

      There agreements are generally referred to as Offshore Procurement Agree:nent~.~and were designed to "spell aut the parameters of the host nations eonsent under public international law to allou the United States to exerc~se its sovereignty. ).e. authority to contract. within the haat nation i territorial jurisdiction ''- Subject to any country-specific limitations Offshore Procurement Agreements au. thoiized the U S to acquire goods and ierv~ces within those countries through reliance on U S domestic laws. regulations, and procedures

      In addition to providing the legal authority to contract. these agreements were also an attempt by the U S to amst rebuilding nations aftei the Second World War y In the early 1950's the European economies uere in complete disarray These countries aere. far the most part. 'actively seeking United States military procurement due to the poor economic mtuatmn existing in their awn countries and desire for hard currency and aid under the hlarshall Plan "IU

      Offshore Piocurement Agreements differed in form and content from country to countq Typically. however, they defined the ex-tent to which the U S could exercise its power to contract '' The agreements covered areas such as applicable contracting lax etandard contract terms and clauses contract placement. parties. BSSLS.

      tame and enforcement. cuetoms and duties, and Offshore Procurement Agreement8 typically pranded tuo methods by whlch the L S.could acquire goods. BBTYICBS and construction direct and indirect procurement Direct procurement authorized the U.S to con. tract directly with a host nation commercial firm or individual for the

      'Sir EUDARS 6-902 1 a) 'Sei EL'DSRS 5-90? 1 b8'Id

      'Roberta. Pnratr ardPubuc 1rternaf.orzol Lou ispocls ofGor,iinment Cnnirnctr 36

      See J Rep So 812 96th Cone 2d Seis 12 iepnnlid in 1960 US Code Cong &

      Roberta. supm note d at 12

      "Thraiher skpru note 6 at 266 l-ld'~ELDARS 6-902 1 c,

      Mil L Rei 1 12 19671

      Admin Sear 2420 2441 [hereinafter Senate Report

      19891 NATO MUTUAL SUPPORT ACT

      support Indirect procurement procedures required the U.S. to make a request for support with a host nation government The host nationwould theneitherprovide thegoods orservicesfromits own inventories or resources or subcontract with a commercial firm on behalf ofthe U S.

      Under the latter method, privity of contract generally remained with the host nation and the commercial contractor ''

      In the case of indirect procurements. the Offshore Procurement Agreements, while providing the underlying legal authority for the U S. to contract, did not operate as contractual instruments. Instead, the US and the host nation country negotiated standardized eon-tract documents known as "model contracts."16 These documents con-tamed contract provisions required by U.S statutes and regulations and were used to contract with the memo countries for all indirect acquls,t,ons."

      2. Foreign Military Soles Procedures

      During this same period all transfers or sales of logistic support. supplies. and service8...