[Title 32 CFR J]
[Code of Federal Regulations (annual edition) - July 1, 2002 Edition]
[Title 32 - NATIONAL DEFENSE]
[Chapter V - DEPARTMENT OF THE ARMY]
[Subchapter A - AID OF CIVIL AUTHORITIES AND PUBLIC RELATIONS]
[Part 516 - LITIGATION]
[Subpart J - Soldiers Summoned to Serve on State and Local Juries]
[From the U.S. Government Printing Office]
32NATIONAL DEFENSE32002-07-012002-07-01falseSoldiers Summoned to Serve on State and Local JuriesJSubpart JNATIONAL DEFENSEDEPARTMENT OF THE ARMYAID OF CIVIL AUTHORITIES AND PUBLIC RELATIONSLITIGATION
Subpart J--Soldiers Summoned to Serve on State and Local Juries
Sec. 516.74 General.
(a) This subpart implements 10 U.S.C. Sec. 982 and DOD Directive
5525.8. It establishes Army policy concerning soldiers on active duty
who are summoned to serve on state and local juries.
(b) This subpart does not apply to Army National Guard soldiers in
an annual training or full-time AGR (Active Guard Reserve) status under
Title 32, U.S. Code. Soldiers in a Title 32 status must refer to their
respective state law for relief from state or local jury duty.
Sec. 516.75 Policy.
(a) Active duty soldiers should fulfill their civic responsibility
by serving on state and local juries, so long as it does not interfere
with military duties.
(b) The following active duty soldiers are exempt from complying
with summons to serve on state and local juries:
(1) General officers.
(2) Commanders.
(3) Active duty soldiers stationed outside the United States, Puerto
Rico, Guam, the Northern Mariana Islands, American Samoa, and the Virgin
Islands.
(4) Active duty soldiers in a training status.
(5) Active duty soldiers assigned to forces engaged in operations.
(c) Other active duty soldiers may be exempted from serving on local
juries if compliance with such summons would have either of the
following effects:
(1) It would unreasonably interfere with performance of the
soldier's military duties; or,
(2) It would adversely affect the readiness of a summoned soldier's
unit, command, or activity.
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Sec. 516.76 Exemption determination authority.
(a) The commander exercising special court-martial convening
authority (SPCMCA) over a unit has the authority to determine whether a
soldier of that unit, who has been served with a summons, is exempt from
serving on a state or local jury unless that authority has been limited
or withheld in accordance with paragraph (b) or (c) of this section.
This authority may not be delegated to a subordinate commander who does
not exercise SPCMCA.
(b) A commander superior to the SPCMCA, who also exercises SPCMCA or
general court-martial convening authority (GCMCA) over a unit, may limit
or withhold the exemption determination authority of subordinate
commanders.
(c) A GCMCA, who orders a unit or soldier assigned to one command to
be attached or detailed to another command for disciplinary purposes
(for example, ``for administration'' or ``for administration of military
justice''), may reserve exemption determination authority to the
commander exercising SPCMCA in the chain of command to which the unit or
soldier is assigned rather than the chain of command to which the unit
or soldier is attached or detailed.
Sec. 516.77 Procedures for exemption.
(a) Active duty soldiers served with a summons to serve on a state
or local jury will promptly advise their commander and provide copies of
pertinent documents.
(b) Unit commanders will evaluate the summons considering both the
individual soldier's duties and the unit mission. Coordination with the
servicing judge advocate or legal adviser and with the appropriate state
or local official may be necessary to determine any impact on the
soldier's duties or on unit readiness.
(1) If the soldier is not exempt under Sec. 516.75 (b) or (c), the
commander will process the soldier for permissive TDY in accordance with
AR 630-5, Leaves and Passes.
(2) If the soldier is exempt under Sec. 516.75 (b) or (c), the
commander will forward the summons and any related documentation, with
recommendations, through the chain of command to the commander with
exemption determination authority over the soldier concerned.
(c) The commander with exemption determination authority over the
soldier concerned will determine whether the soldier is exempt. His
determination is final.
(d) The exemption determination authority will notify responsible
state or local officials whenever a soldier summoned for jury duty is
exempt. The notification will cite 10 U.S.C. 982 as authority.
Sec. 516.78 Status, fees, and expenses.
(a) Soldiers who are required to comply with summons to serve on
state or local juries will be placed on permissive TDY under the
provisions of AR 630-5.
(b) Jury fees accruing to soldiers for complying with the summons to
serve on state and local juries must be turned over to the appropriate
finance office for deposit into the U.S. Treasury. Commands will
establish procedures with local authorities and their servicing finance
and accounting activity to ensure that such jury fees are so deposited.
Soldiers, however, may keep any reimbursement from state or local
authority for expenses incurred in the performance of jury duty,
including transportation, meals, and parking.
Appendix A to Part 516--References
Publications referenced in this part can be obtained at the National
Technical Information Services, U.S. Department of Commerce, 5285 Port
Royal Road, Springfield, VA 22161.
Required Publications
AR 25-55, The Department of the Army Freedom of Information Act Program.
(Cited in Secs. 516.40, 516.72)
AR 27-10, Military Justice. (Cited in Sec. 516.4)
AR 27-20, Claims. (Cited in Secs. 516.4, 516.33, 516.22)
AR 27-60, Patents, Inventions, and Copyrights.
AR 37-60, Pricing for Material and Services. (Cited in Sec. 516.43.)
AR 37-103, Finance and Accounting for Installations: Disbursing
Operations. (Cited in Sec. 516.22.)
AR 60-20, Operating Policies. (Cited in Sec. 516.22.)
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AR 190-9, Absentee Deserter Apprehension Program and Surrender of
Military Personnel to Civilian Law Enforcement Agencies.
(Cited in Sec. 516.9)
AR 210-47, State and Local Taxation of Lessee's Interest in Wherry Act
Housing (Title VIII of the National Housing Act).
AR 215-1, Administration of Army Morale, Welfare, and Recreation
Activities and Nonappropriated Fund Instrumentalities. (Cited
in Sec. 516.22.)
AR 215-2, The Management and Operation of Army Morale, Welfare, and
Recreation Activities and Nonappropriated Fund
Instrumentalities. (Cited in Sec. 516.22.)
AR 310-1, Publications, Blank Forms, and Printing Management.
AR 340-21, The Army Privacy Program. (Cited in Secs. 516.40, 516.72.)
AR 380-5, Department of the Army Information Security Program.
AR 405-25, Annexation. (Cited in Sec. 516.22.)
AR 630-5, Leaves and Passes. (Cited in Secs. 516.55, 516.77, 516.78.)
AR 630-10, Absence Without Leave, Desertion, and Administration of
Personnel Involved in Civilian Court Proceedings. (Cited in
Sec. 516.9)
Related Publications
A related publication is merely a source of additional information.
The user does not have to read it to understand the regulation.
AR 20-1, Inspector General Activities and Procedures. (Cited in
Secs. 516.41, 516.72.)
AR 27-1, Judge Advocate Legal Service.
AR 27-3, Legal Assistance. (Cited in Sec. 516.6.)
AR 27-10, Military Justice. (Cited in Secs. 516.4, 516.5, 516.15.)
AR 27-50, Status of Forces Policies, Procedures, and Information. (Cited
in Sec. 516.15.)
AR 37-104-3, Military Pay and Allowances Procedures.
AR 37-105, Finance and Accounting for Installations: Civilian Pay
Procedures.
AR 55-19, Marine Casualties. (Cited in Sec. 516.22.)
AR 190-29, Misdemeanors and Uniform Violation Notices Referred to U.S.
Magistrates or District Courts.
AR 190-40, Serious Incident Report. (Cited in Sec. 516.15.)
AR 210-50, Family Housing Management. (Cited in Sec. 516.37.)
AR 335-15, Management Information Control System. (Cited in
Sec. 516.15.)
AR 600-40, Apprehension, Restraint, and Release to Civil Authorities.
AR 600-50, Standards of Conduct for Department of the Army Personnel.
AR 690-700, Personnel Relations and Services. (Cited in Sec. 516.70.)
Prescribed Form
DA Form 4, Department of the Army Certification for Authentication of
Records. (Prescribed in Sec. 516.25, 516.35.)
Referenced Forms
DA Form 2631-R, Medical Care-Third Party Liability Notification.
DA Form 3154, MSA Invoice and Receipt.
Appendix B to Part 516--Mailing Addresses
The following is a list of frequently referred to Department of the
Army Services/Divisions/Offices and their mailing addresses:
COMMANDER (JACS-Z), U.S. ARMY CLAIMS SERVICE, OTJAG, BUILDING 4411, ROOM
206, LLEWELLYN AVENUE, FORT GEORGE G. MEADE, MD 20755-5360
(1) PERSONNEL CLAIMS AND RECOVERY DIVISION (JACS-PC), U.S. ARMY
CLAIMS SERVICE, OTJAG, BUILDING 4411, ROOM 206, LLEWELLYN AVENUE, FORT
GEORGE G. MEADE, MD 20755-5360
(2) TORT CLAIMS DIVISION (JACS-TC), U.S. ARMY CLAIMS SERVICE, OTJAG,
BUILDING 4411, ROOM 206, LLEWELLYN AVENUE, FORT GEORGE G. MEADE, MD
20755-5360
CONTRACT APPEALS DIVISION, HQDA(DAJA-CA), 901 NORTH STUART STREET,
ARLINGTON, VA 22203-1837
CONTRACT LAW DIVISION, THE JUDGE ADVOCATE GENERAL, 2200 ARMY PENTAGON,
WASHINGTON, DC 20310-2200
CRIMINAL LAW DIVISION, THE JUDGE ADVOCATE GENERAL, 2200 ARMY PENTAGON,
WASHINGTON, DC 20310-2200
ENVIRONMENTAL LAW DIVISION, HQDA(DAJA-EL), 901 NORTH STUART STREET,
ARLINGTON, VA 22203-1837
LABOR AND EMPLOYMENT LAW DIVISION, THE JUDGE ADVOCATE GENERAL, 2200 ARMY
PENTAGON, WASHINGTON, DC 20310-2200,
LITIGATION DIVISION, HQDA(DAJA-LT), 901 NORTH STUART STREET, ARLINGTON,
VA 22203-1837
(1) CIVILIAN PERSONNEL BRANCH, HQDA(DAJA-LTC), 901 NORTH STUART
STREET, ARLINGTON, VA 22203-1837
(2) GENERAL LITIGATION BRANCH, HQDA(DAJA-LTG), 901 NORTH STUART
STREET, ARLINGTON, VA 22203-1837
(3) MILITARY PERSONNEL BRANCH, HQDA(DAJA-LTM), 901 NORTH STUART
STREET, ARLINGTON, VA 22203-1837
(4) TORT BRANCH, HQDA(DAJA-LTT), 901 NORTH STUART STREET, ARLINGTON,
VA 22203-1837
PERSONNEL, PLANS, AND TRAINING OFFICE, THE JUDGE ADVOCATE GENERAL, 2200
ARMY PENTAGON, WASHINGTON, DC 20310-2200
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PROCUREMENT FRAUD DIVISION, HQDA(DAJA-PF), 901 NORTH STUART STREET,
ARLINGTON, VA 22203-1837
INTELLECTUAL PROPERTY DIVISION, HQDA(JALS-IP), 901 NORTH STUART STREET,
ARLINGTON, VA 22203-1837
REGULATORY LAW OFFICE, HQDA(JALS-RL), 901 NORTH STUART STREET,
ARLINGTON, VA 22203-1837
THE JUDGE ADVOCATE GENERAL, 2200 ARMY PENTAGON, WASHINGTON, DC 20310-
2200
THE AJAG FOR CIVIL LAW & LITIGATION, THE JUDGE ADVOCATE GENERAL, 2200
ARMY PENTAGON, WASHINGTON, DC 20310-2200
U.S. ARMY TRIAL DEFENSE SERVICE, HQDA(JALS-TD), NASSIF BUILDING, FALLS
CHURCH, VA 22041-5013
Appendix C to Part 516--Department of Defense Directive 5405.2, Release
of Official Information in Litigation and Testimony by DoD Personnel as
Witnesses
Department of Defense Directive
July 23, 1985, Number 5405.2, GC, DOD
Subject: Release of Official Information in Litigation and Testimony by
DoD Personnel as Witnesses
References:
(a) Title 5, United States Code, Sections 301, 552, and 552a
(b) Title 10, United States Code, Section 133
(c) DoD Directive 5220.6, ``Industrial Personnel Security Clearance
Program,'' December 20, 1976
(d) DoD Directive 5200.1-R, ``Information Security Program Regulation,''
August 1982, authorized by DoD Directive 5200.1, June 7, 1982
(e) DoD Directive 5230.25, ``Withholding of Unclassified Technical Data
from Public Disclosure,'' November 6, 1984
(f) DoD Instruction 7230.7, ``User Charges,'' January 29, 1985
(g) DoD Directive 5400.7-R, ``DoD Freedom of Information Act Program,''
December 1980, authorized by DoD Directive 5400.7, March 24,
1980
A. Purpose
Under Section 301 reference (a) and reference (b), this Directive
establishes policy, assigns responsibilities, and prescribes procedures
for the release of official DoD information in litigation and for
testimony by DoD personnel as witnesses during litigation.
B. Applicability and Scope
1. This Directive applies to the Office of the Secretary of Defense
(OSD), the Military Departments, the Organization of the Joint Chiefs of
Staff (OJCS), the Unified and Specified Commands, and the Defense
Agencies (hereafter referred to as ``DoD Components''), and to all
personnel of such DoD Components.
2. This Directive does not apply to the release of official
information or testimony by DoD personnel in the following situations:
a. Before courts-martial convened by the authority of the Military
Departments or in administrative proceedings conducted by or on behalf
of a DoD Component;
b. Pursuant to administrative proceedings conducted by or on behalf
of the Equal Employment Opportunity Commission (EEOC) or the Merit
Systems Protection Board (MSPB), or pursuant to a negotiated grievance
procedure under a collective bargaining agreement to which the
Government is a party;
c. In response to requests by Federal Government counsel in
litigation conducted on behalf of the United States;
d. As part of the assistance required in accordance with the Defense
Industrial Personnel Security Clearance Program under DoD Directive
5220.6 (reference (c)); or
e. Pursuant to disclosure of information to Federal, State, and
local prosecuting and law enforcement authorities, in conjunction with
an investigation conducted by a DoD criminal investigative organization.
3. This Directive does not supersede or modify existing laws or DoD
programs governing the testimony of DoD personnel or the release of
official DoD information during grand jury proceedings, the release of
official information not involved in litigation, or the release of
official information pursuant to the Freedom of Information Act, 5
U.S.C. Section 552 (reference (a)) or the Privacy Act, 5 U.S.C. Section
552a (reference (a)), nor does this Directive preclude treating any
written request for agency records that is not in the nature of legal
process as a request under the Freedom of Information or Privacy Acts.
4. This Directive is not intended to infringe upon or displace the
responsibilities committed to the Department of Justice in conducting
litigation on behalf of the United States in appropriate cases.
5. This Directive does not preclude official comment on matters in
litigation in appropriate cases.
6. This Directive is intended only to provide guidance for the
internal operation of the Department of Defense and is not intended to,
does not, and may not be relied upon to create any right or benefit,
substantive or procedural, enforceable at law against the United States
or the Department of Defense.
C. Definitions
1. Demand. Subpoena, order, or other demand of a court of competent
jurisdiction, or
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other specific authority for the production, disclosure, or release of
official DoD information or for the appearance and testimony of DoD
personnel as witnesses.
2. DoD Personnel. Present and former U.S. military personnel;
Service Academy cadets and midshipmen; and present and former civilian
employees of any Component of the Department of Defense, including
nonappropriated fund activity employees; non-U.S. nationals who perform
services overseas, under the provisions of status of forces agreements,
for the United States Armed Forces; and other specific individuals hired
through contractual agreements by or on behalf of the Department of
Defense.
3. Litigation. All pretrial, trial, and post-trial stages of all
existing or reasonably anticipated judicial or administrative actions,
hearings, investigations, or similar proceedings before civilian courts,
commissions, boards (including the Armed Services Board of Contract
Appeals), or other tribunals, foreign and domestic. This term includes
responses to discovery requests, depositions, and other pretrial
proceedings, as well as responses to formal or informal requests by
attorneys or others in situations involving litigation.
4. Official Information. All information of any kind, however
stored, that is in the custody and control of the Department of Defense,
relates to information in the custody and control of the Department, or
was acquired by DoD personnel as part of their official duties or
because of their official status within the Department while such
personnel were employed by or on behalf of the Department or on active
duty with the United States Armed Forces.
D. Policy
It is DoD policy that official information should generally be made
reasonably available for use in Federal and state courts and by other
governmental bodies unless the information is classified, privileged, or
otherwise protected from public disclosure.
E. Responsibilities
1. The General Counsel, Department of Defense (GC, DoD), shall
provide general policy and procedural guidance by the issuance of
supplemental instructions or specific orders concerning the release of
official DoD information in litigation and the testimony of DoD
personnel as witnesses during litigation.
2. The Heads of DoD Components shall issue appropriate regulations
to implement this Directive and to identify official information that is
involved in litigation.
F. Procedures
1. Authority to Act
a. In response to a litigation request or demand for official DoD
information or the testimony of DoD personnel as witnesses, the General
Counsels of DoD, Navy, and the Defense Agencies; the Judge Advocates
General of the Military Departments; and the Chief Legal Advisors to the
JCS and the Unified and Specified Commands, with regard to their
respective Components, are authorized--after consulting and coordinating
with the appropriate Department of Justice litigation attorneys, as
required--to determine whether official information originated by the
Component may be released in litigation; whether DoD personnel assigned
to or affiliated with the Component may be interviewed, contacted, or
used as witnesses concerning official DoD information or as expert
witnesses; and what, if any, conditions will be imposed upon such
release, interview, contact, or testimony. Delegation of this authority,
to include the authority to invoke appropriate claims of privilege
before any tribunal, is permitted.
b. In the event that a DoD Component receives a litigation request
or demand for official information originated by another Component, the
receiving Component shall forward the appropriate portions of the
request or demand to the originating Component for action in accordance
with this Directive. The receiving Component shall also notify the
requestor, court, or other authority of its transfer of the request or
demand.
c. Notwithstanding the provisions of paragraphs F.1.a. and b., the
GC, DoD, in litigation involving terrorism, espionage, nuclear weapons,
intelligence means or sources, or otherwise as deemed necessary, may
notify Components that GC, DoD, will assume primary responsibility for
coordinating all litigation requests and demands for official DoD
information or the testimony of DoD personnel, or both; consulting with
the Department of Justice, as required; and taking final action on such
requests and demands.
2. Factors to Consider
In deciding whether to authorize the release of official DoD
information or the testimony of DoD personnel concerning official
information (hereinafter referred to as ``the disclosure'') pursuant to
paragraph F.1., DoD officials should consider the following types of
factors:
a. Whether the request or demand is unduly burdensome or otherwise
inappropriate under the applicable court rules;
b. Whether the disclosure, including release in camera, is
appropriate under the rules of procedure governing the case or matter in
which the request or demand arose;
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c. Whether the disclosure would violate a statute, executive order,
regulation, or directive;
d. Whether the disclosure, including release in camera, is
appropriate or necessary under the relevant substantive law concerning
privilege;
e. Whether the disclosure, except when in camera and necessary to
assert a claim of privilege, would reveal information properly
classified pursuant to the DoD Information Security Program under DoD
5200.1-R (reference (d)), unclassified technical data withheld from
public release pursuant to DoD Directive 5230.25 (reference (e)), or
other matters exempt from unrestricted disclosure; and
f. Whether disclosure would interfere with ongoing enforcement
proceedings, compromise constitutional rights, reveal the identity of an
intelligence source or confidential informant, disclose trade secrets or
similarly confidential commercial or financial information, or otherwise
be inappropriate under the circumstances.
3. Decisions on Litigation Requests and Demands
a. Subject to paragraph F.3.e., DoD personnel shall not, in response
to a litigation request or demand, produce, disclose, release, comment
upon, or testify concerning any official DoD information without the
prior written approval of the appropriate DoD official designated in
paragraph F.1. Oral approval may be granted, but a record of such
approval shall be made and retained in accordance with the applicable
implementing regulations.
b. If official DoD information is sought, through testimony or
otherwise, by a litigation request or demand, the individual seeking
such release or testimony must set forth, in writing and with as much
specificity as possible, the nature and relevance of the official
information sought. Subject to paragraph F.3.e., DoD personnel may only
produce, disclose, release, comment upon, or testify concerning those
matters that were specified in writing and properly approved by the
appropriate DoD official designated in paragraph F.1. See United States
ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
c. Whenever a litigation request or demand is made upon DoD
personnel for official DoD information or for testimony concerning such
information, the personnel upon whom the request or demand was made
shall immediately notify the DoD official designated in paragraph F.1.
for the Component to which the individual contacted is or, for former
personnel, was last assigned. In appropriate cases, the responsible DoD
official shall thereupon notify the Department of Justice of the request
or demands. After due consultation and coordination with the Department
of Justice, as required, the DoD official shall determine whether the
individual is required to comply with the request or demand and shall
notify the requestor or the court or other authority of the
determination reached.
d. If, after DoD personnel have received a litigation request or
demand and have in turn notified the appropriate DoD official in
accordance with paragraph F.3.c., a response to the request or demand is
required before instructions from the responsible official are received,
the responsible official designated in paragraph F.1. shall furnish the
requestor or the court or other authority with a copy of this Directive
and applicable implementing regulations, inform the requestor or the
court or other authority that the request or demand is being reviewed,
and seek a stay of the request or demand pending a final determination
by the Component concerned.
e. If a court of competent jurisdiction or other appropriate
authority declines to stay the effect of the request or demand in
response to action taken pursuant to paragraph F.3.d., or if such court
or other authority orders that the request or demand must be complied
with notwithstanding the final decision of the appropriate DoD official,
the DoD personnel upon whom the request or demand was made shall notify
the responsible DoD official of such ruling or order. If the DoD
official determines that no further legal review of or challenge to the
court's ruling or order will be sought, the affected DoD personnel shall
comply with the request, demand, or order. If directed by the
appropriate DoD official, however, the affected DoD personnel shall
respectfully decline to comply with the demand. See United States ex
rel. Touhy v. Ragen, 340 U.S. 462 (1951).
4. Fees
Consistent with the guidelines in DoD Instruction 7230.7 (reference
(f)), the appropriate officials designated in paragraph F.1. are
authorized to charge reasonable fees, as established by regulation and
to the extent not prohibited by law, to parties seeking, by request or
demand, official DoD information not otherwise available under the DoD
Freedom of Information Act Program (reference (g)). Such fees, in
amounts calculated to reimburse the Government for the expense of
providing such information, may include the costs of time expended by
DoD employees to process and respond to the request or demand; attorney
time for reviewing the request or demand and any information located in
response thereto and for related legal work in connection with the
request or demand; and expenses generated by materials and equipment
used to search for, produce, and copy the responsive information. See
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978).
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5. Expert or Opinion Testimony
DoD personnel shall not provide, with or without compensation,
opinion or expert testimony concerning official DoD information,
subjects, or activities, except on behalf of the United States or a
party represented by the Department of Justice. Upon a showing by the
requestor of exceptional need or unique circumstances and that the
anticipated testimony will not be adverse to the interests of the
Department of Defense or the United States, the appropriate DoD official
designated in paragraph F.1. may, in writing, grant special
authorization for DoD personnel to appear and testify at no expense to
the United States. If, despite the final determination of the
responsible DoD official, a court of competent jurisdiction, or other
appropriate authority, orders the appearance and expert or opinion
testimony of DoD personnel, the personnel shall notify the responsible
DoD official of such order. If the DoD official determines that no
further legal review of or challenge to the court's order will be
sought, the affected DoD personnel shall comply with the order. If
directed by the appropriate DoD official, however, the affected DoD
personnel shall respectfully decline to comply with the demand. See
United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
G. Effective Date and Implementation
This Directive is effective immediately. Forward two copies of
implementing documents to the General Counsel, DoD, within 120 days.
Signed by William H. Taft, IV
Deputy Secretary of Defense.
Appendix D to Part 516--Department of Defense Directive 7050.5,
Coordination of Remedies for Fraud and Corruption Related to Procurement
Activities
Department of Defense Directive
June 7, 1989, Number 7050.5, IG, DOD
Subject: Coordination of Remedies for Fraud and Corruption Related to
Procurement Activities
References:
(a) DoD Directive 7050.5, subject as above, June 28, 1985 (hereby
canceled)
(b) Public Law 97-291, ``The Victim and Witness Protection Act of
1982,'' October 12, 1982
(c) Defense FAR Supplement (DFARS), Subpart 4.6, ``Contract Reporting''
(d) DoD Instruction 4105.61, ``DoD Procurement Coding Manual,'' May 4,
1973
(e) DoD 4105.61-M, ``Procurement Coding Manual'' (Volume I), October
1988, authorized by DoD Instruction 4105.61 May 4, 1973
A. Reissuance and Purpose
This Directive reissues reference (a) to update policies,
procedures, and responsibilities for the coordination of criminal,
civil, administrative, and contractual remedies stemming from
investigation of fraud or corruption related to procurement activities.
More effective and timely communication of information developed during
such investigations will enable the Department of Defense to take the
most appropriate of the available measures.
B. Applicability
This Directive applies to the Office of the Secretary of Defense
(OSD); the Inspector General, Department of Defense (IG, DoD); the
Military Departments; the Defense Agencies; and the DoD Field Activities
(hereafter referred to collectively as ``DoD Components'').
C. Definitions
1. DoD Criminal Investigative Organizations. Refers to the U.S. Army
Criminal Investigation Command; the Naval Investigative Service Command;
the U.S. Air Force Office of Special Investigations; and the Defense
Criminal Investigative Service, Office of the IG, DoD (OIG, DoD).
2. Significant. Refers to all fraud cases involving an alleged loss
of $100,000, or more; all corruption cases related to procurement that
involved bribery, gratuities, or conflicts of interest; and any
investigation into defective products or product substitution in which a
SERIOUS HAZARD to health, safety, or operational readiness is indicated,
regardless of loss value.
D. Policy
It is DoD policy that:
1. Each of the DoD Components shall monitor, from its inception, all
significant investigations of fraud or corruption related to procurement
activities affecting its organizations, for the purpose of ensuring that
all possible criminal, civil, administrative, and contractual remedies
in such cases are identified to cognizant procurement and command
officials and that appropriate remedies are pursued expeditiously. This
process shall include appropriate coordination with all other affected
DoD Components.
2. All investigations of fraud or corruption related to procurement
activities shall be reviewed to determine and implement the appropriate
contractual and administrative actions that are necessary to recover
funds lost through fraud or corruption and to ensure the integrity of
DoD programs and operations.
3. Appropriate civil, contractual, and administrative actions,
including those set forth in enclosure 1, shall be taken expeditiously.
During an investigation and before
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prosecution or litigation, and when based in whole or in part on
evidence developed during an investigation, such actions shall be taken
with the advance knowledge of the responsible DoD criminal investigative
organization and, when necessary, the appropriate legal counsel in the
Department of Defense and the Department of Justice (DoJ). When
appropriate, such actions shall be taken before final resolution of the
criminal or civil case.
E. Responsibilities
1. The Heads of DoD Components shall:
a. Establish a centralized organization (hereafter referred to as
``the centralized organization'') to monitor and ensure the coordination
of criminal, civil, administrative, and contractual remedies for each
significant investigation of fraud or corruption related to procurement
activities affecting the DoD Component.
b. Establish procedures requiring the centralized organization to
discuss regularly with the assigned DoD criminal investigative
organization(s) such issues as the current status of significant
investigations and their coordination with prosecutive authorities.
c. Establish procedures requiring that all coordination involving
the DoJ, during the pendency of a criminal investigation, is
accomplished by or with the advance knowledge of the appropriate DoD
criminal investigative organization(s).
d. Establish procedures to ensure appropriate coordination of
actions between the centralized organizations of any DoD Components
affected by a significant investigation of fraud or corruption related
to procurement activities.
e. Establish procedures to ensure that all proper and effective
civil, administrative, and contractual remedies available to the
Department of Defense are, when found applicable and appropriate,
considered and undertaken promptly by the necessary DoD officials (e.g.,
commanders, programs officials, and contracting officers). This includes
initiation of any suspension and debarment action within 30 days of an
indictment or conviction. The centralized organization shall ensure that
all proposed actions are coordinated with appropriate investigative
organization.
f. Establish procedures to ensure that a specific comprehensive
remedies plan is developed for each significant investigation involving
fraud or corruption related to procurement activities. These procedures
shall include the participation of the appropriate DoD criminal
investigative organization in the development of the plan.
g. Establish procedures to ensure that in those significant
investigations of fraud or corruption related to procurement activities
when adverse impact on a DoD mission can be determined, such adverse
impact is identified and documented by the centralized organization.
This information is to be used by the centralized organization of the
DoD Component concerned in development of the remedies plan required in
paragraph E.1.f., above, and shall be furnished to prosecutors as stated
in paragraph E.2.e., below. The information shall also be used by the
centralized organizations in development and preparation of ``Victim
Impact Statements'' for use in sentencing proceedings, as provided for
P.L. 97-291 (reference (b)). Some examples of adverse impact on a DoD
mission are as follows:
(1) Endangerment of personnel or property.
(2) Monetary loss.
(3) Denigration of program or personnel integrity.
(4) Compromise of the procurement process.
(5) Reduction or loss of mission readiness.
h. Ensure training materials are developed on fraud and corruption
in the procurement process, and that all procurement and procurement-
related training includes a period of such instruction appropriate to
the duration and nature of the training.
i. Establish procedures enabling the centralized organization to
ensure that safety and readiness issues are examined and appropriately
dealt with for all cases in which a notice is required under paragraph
E.2.i., below. The minimum procedures to be followed by the centralized
organization are in enclosure 3.
j. Ensure that appropriate command, procurement, and investigative
organizations are provided sufficient information to determine if
further inquiry is warranted on their part to prevent reoccurrence and
detect other possible fraud within their activity.
2. The Secretaries of the Military Departments and the Inspector
General, Department of Defense (IG, DoD), or their designees, shall
establish procedures that ensure that their respective criminal
investigative organizations will:
a. Notify, in writing, the centralized organization for the affected
DoD Component of the start of all significant investigations involving
fraud or corruption that are related to procurement activities. Initial
notification shall include the following elements:
(1) Case title.
(2) Case control number.
(3) Investigative agency and office of primary responsibility.
(4) Date opened.
(5) Predication.
(6) Suspected offense(s).
b. Notify expeditiously the Defense Investigative Service (DIS) of
any investigations that develop evidence that would impact on DoD-
cleared industrial facilities or personnel.
[[Page 126]]
c. Discuss regularly with the centralized organization such issues
as the current status of significant investigations and their
coordination with prosecutive authorities. If the DoD criminal
investigative organization has prepared any documents summarizing the
current status of the investigation, such documents shall be provided to
the centralized organization. Completed reports of significant
investigations also should be provided to the centralized organization.
d. Provide to the appropriate procurement officials, commanders, and
suspension and debarment authorities, when needed to allow consideration
of applicable remedies, any court records, documents, or other evidence
of fraud or corruption related to procurement activities. Such
information shall be provided in a timely manner to enable the
suspension and debarment authority to initiate suspension and debarment
action within 30 days of an indictment or conviction.
e. Provide expeditiously to prosecutive authorities the information
regarding any adverse impact on a DoD mission, that is gathered under
paragraph E.1.g., above, for the purpose of enhancing the
prosecutability of a case. Such information also should be used in
preparing a victim impact statement for use in sentencing proceedings as
provided for in Public Law 97-291.
f. Gather, at the earliest practical point in the investigation,
without reliance on grand jury subpoenas whenever possible, relevant
information concerning responsible individuals, the organizational
structure, finances, and contract history of DoD contractors under
investigation for fraud or corruption related to procurement activities,
to facilitate the criminal investigation as well as any civil,
administrative, or contractual actions or remedies that may be taken.
Some available sources of such information are listed in enclosure 2.
g. Provide timely notice to other cognizant DoD criminal
investigative organizations of evidence of fraud by a contractor,
subcontractor, or employees of either, on current or past contracts
with, or affecting, other DoD Components.
h. Ascertain the impact upon any ongoing investigation or
prosecution of civil, contractual, and administrative actions being
considered and advise the appropriate centralized organization of any
adverse impact.
i. Obtain a DD 350 report in every investigation into defective
products or product substitution in which a SERIOUS HAZARD to health,
safety, or operational readiness is indicated. Timely notification shall
be made to the centralized organization of each DoD Component that is
identified as having contract actions with the subject of the
investigation.
j. Obtain a DD 350 report in all significant fraud investigations,
as defined in subsection C.2. above, whether or not the case involved
defective products or product substitution. Timely notification shall be
made to the centralized organization of each DoD Component that is
identified as having contract actions with the subject of the
investigation.
3. The Inspector General, Department of Defense (IG, DoD), shall:
a. Develop training materials relating to fraud and corruption in
procurement related activities which shall be utilized in all
procurement related training in conjunction with training materials
developed by the DoD Components. (See paragraph E.1.h., above.)
b. Establish procedures for providing to the DoD criminal
investigative organizations, through the Office of the Assistant
Inspector General for Auditing (OAIG-AUD), reports of data contained in
the Individual Procurement Action Report (DD Form 350) System.
F. Procedures
Transmissions of information by DoD criminal investigative
organizations required by subsection E.2., above, shall be made as
expeditiously as possible, consistent with efforts not to compromise any
ongoing criminal investigation. The transmission of the information may
be delayed when, in the judgment of the head of the DoD criminal
investigative organization, failure to delay would compromise the
success of any investigation or prosecution. The prosecutive authorities
dealing with the investigation shall be consulted, when appropriate, in
making such determinations.
G. Effective Date and Implementation
This Directive is effective immediately. Forward two copies of
implementing documents to the Inspector General, Department of Defense,
within 120 days.
Donald J. Atwood,
Deputy Secretary of Defense.
Enclosures--3
1. Civil Contractual and Administrative Actions That Can Be Taken in
Response to Evidence of Procurement Fraud
2. Sources of Information Relating to Government Contractors
3. Actions to be Taken in Product Substitution Investigations
Civil, Contractual, and Administrative Actions That Can Be Taken in
Response to Evidence of Procurement Fraud
A. Civil
1. Statutory
a. False Claims Act (31 USC 3729 et seq.).
b. Anti-Kickback Act (41 USC 51 et seq.).
c. Voiding Contracts (18 USC 218).
d. Truth in Negotiations Act (10 USC 2306(f)).
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e. Fraudulent Claims-Contract Disputes Act (41 USC 604)
2. Nonstatutory
a. Breach of contract.
b. Breach of warranty.
c. Money paid under mistake of fact.
d. Unjust enrichment.
e. Fraud and/or Deceit.
f. Conversion.
g. Recision and/or Cancellation.
h. Reformation.
i. Enforcement of performance bond/guarantee agreement.
3. Contractual
a. Termination of contract for default.
b. Termination of contract for convenience of Government.
c. Termination for default and exemplary damages under the
gratuities clause.
d. Recision of contract.
e. Contract warranties.
f. Withholding of payments to contractor.
g. Offset of payments due to contractor from other contracts.
h. Price reduction.
i. Correction of defects (or cost of correction).
j. Refusal to accept nonconforming goods.
k. Revocation of acceptance.
l. Denial of claims submitted by contractors.
m. Disallowance of contract costs.
n. Removal of the contractor from automated solicitation or payment
system.
4. Administrative
a. Change in contracting forms and procedures.
b. Removal or reassignment of Government personnel.
c. Review of contract administration and payment controls.
d. Revocation of warrant contracting officer.
e. Suspension of contractor and contractor employees.
f. Debarment of contractor and contractor employees.
g. Revocation of facility security clearances.
h. Nonaward of contract based upon a finding of contractor
nonresponsibility.
i. Voluntary refunds.
Sources of Information Relating to Government Contractors
------------------------------------------------------------------------
Type of information Possible source
------------------------------------------------------------------------
Location, dollar value, type, and a. DD Form 350 Report.\1\
number of current contracts with the b. Defense Logistics Agency's
Department of Defense. (DLA) ``Contract
Administration Defense
Logistics Agency's (DLA)
Contract Administration Report
(CAR Report) on contracts DLA
administers.
2. Financial status of corporation, a. Dunn and Bradstreet Reports.
history of corporation, owners, and b. Corporate filings with local
officers. secretaries of the State, or
corporate recorders.
c. Securities and Exchange
Commission (public
corporations).
d. Small Business
Administration (SBA) (small
businesses).
e. General Accounting Office
(bid protests, and contractors
indebted to the Government).
f. Armed Services Board of
Contract Appeals (ASBCA) or
court litigation.
g. List of Contractors Indebted
to the United States
(maintained, published and
distributed by the U.S. Army
Finance and Accounting Center,
Indianapolis, Indiana 46249).
3. Security clearance background a. Defense Investigative
information on facility and officers. Service.
4. Performance history of contractor... a. Local contracting officers.
b. Defense Contract
Administration Service
preaward surveys.
c. SBA Certificate of
Competency records.
5. Name, location, offense alleged, and DLA Automated Criminal Case
previous investigative efforts Management System. (Available
involving DLA-awarded or DLA- through field offices of the
administered contracts. DLA Counsel's office.)
6. Bid protests, litigation, and Field offices of the DLA
bankruptcy involving DLA-awarded or Counsel's office.
DLA-administered contracts.
------------------------------------------------------------------------
\1\ A determination as to the contract history of any DoD contractor
with contracts in excess of $25,000 annually can be made through a
review of the ``Individual Procurement Action Report'' (DD Form 350)
system, as prescribed by Subpart 4.6 of the DoD FAR Supplement, DoD
Instruction 4105.61, and DoD 4105.61-M (references (c), (d), and (e)).
Actions to be Taken in Product Substitution Investigations
A. The centralized organization, in all cases involving allegations
of product substitution in which a SERIOUS HAZARD to health, safety, or
operational readiness is indicated shall:
1. Review the notice of the case immediately after receiving it from
the Defense criminal investigative organization. Review the notice to
determine any potential safety
[[Page 128]]
or readiness issues indicated by the suspected fraud.
2. Notify all appropriate safety, procurement, and program officials
of the existence of the case.
3. Obtain a complete assessment from safety, procurement, and
program officials of the adverse impact of the fraud on DoD programs and
operations.
4. Ensure that the DoD Component provides the Defense criminal
investigative organization with full testing support to completely
identify the defective nature of the substituted products. Costs
associated with the testing shall be assumed by the appropriate
procurement program.
5. Prepare a comprehensive impact statement describing the adverse
impact of the fraud on DoD programs for use in any criminal, civil, or
contractual action related to the case.
B. In all cases involving allegations of product substitution that
affect more than one DoD Component, that centralized organizations of
the affected DoD Components shall identify a lead Agency. The lead
centralized organization shall ensure that information on the fraud is
provided to the centralized organization of all other affected DoD
Components. The lead centralized organization shall ensure compliance
with the requirements of section A., above. The lead centralized
organization shall then be responsible for preparing a comprehensive
``Victim Impact Statement'' as required by paragraph E.1.g. of this
Directive.
C. In all cases involving allegations of product substitution, the
Defense Criminal Investigative Organization shall:
1. Immediately notify the appropriate centralized organization of
the beginning of the case.
2. Continue to provide to the centralized organization any
information developed during the course of the investigation that
indicates substituted products have been, or might be, provided to the
Department of Defense.
3. Ensure that any request for testing of substituted products is
provided to the centralized organization.
Appendix E to Part 516--Department of Defense Directive 5505.5,
Implementation of the Program Fraud Civil Remedies Act
DOD Directive 5505.5 is contained in 32 CFR part 277.
Appendix F to Part 516--Glossary
Abbreviations
AAFES: Army and Air Force Exchange Service
AMEDD: Army Medical Department
AFARS: Army Federal Acquisition Regulation Supplement
ASBCA: Armed Services Board of Contract Appeals
AUSA: Assistant United States Attorney
CFR: Code of Federal Regulations
COE: United States Army Corps of Engineers
DA: Department of the Army
DFARS: Defense Federal Acquisition Regulation Supplement
DOD: Department of Defense
DOJ: Department of Justice. In this regulation, reference to DOJ means
either United States Attorneys' Offices or The (main)
Department of Justice in Washington, DC
DCIS: Defense Criminal Investigative Service
e.g.: An abbreviation for exempli gratia, meaning ``for example''
et seq.: An abbreviation for et sequentes, meaning ``and the following''
FAR: Federal Acquisition Regulation
FAX: Facsimile Transmission
FBI: Federal Bureau of Investigation
Fed. R. Civ. P.: Federal Rules of Civil Procedure
Fed. R. Crim. P.: Federal Rules of Criminal Procedure
FOIA: Freedom of Information Act
GAO: General Accounting Office
HQDA: Headquarters, Department of the Army
i.e.: An abbreviation for id est, meaning ``that is''
IG: Inspector General
JA: Judge Advocate
MACOM: Major Command
MSPB: Merit Systems Protection Board
NAF: Nonappropriated Fund
OTJAG: Office of The Judge Advocate General
OSC: Office of Special Counsel
PFA: Procurement Fraud Advisor
PFCRA: Program Fraud Civil Remedies Act
PFD: Procurement Fraud Division
PFI: Procurement Fraud or Irregularities
RJA: Recovery Judge Advocate
SAUSA: Special Assistant U.S. Attorney
SJA: Staff Judge Advocate
TDY: temporary Duty
TJAG: The Judge Advocate General
UCMJ: Uniform Code of Military Justice
USACIDC: U.S. Army Criminal Investigation Command
USALSA: U.S. Army Legal Services Agency
USARCS: U.S. Army Claims Service
USATDS: U.S. Army Trial Defense Service
USMA: United States Military Academy
U.S.C.: United States Code
Terms
Active Duty
Full-time duty in the active military service of the United States.
Includes: full-time training duty; annual training duty; active
[[Page 129]]
duty for training; attendance, while in the active military service, at
a school designated as a Service School by law or by the Secretary of
the military department concerned; and, attendance, while in the active
military service, at advanced civil schooling and training with
industry. It does not include full-time National Guard duty under Title
32, United States Code.
Army Activities
Activities of or under the control of the Army, one of its
instrumentalities, or the Army National Guard, including activities for
which the Army has been designated the administrative agency, and those
designated activities located in an area in which the Army has been
assigned single service claims responsibility by DOD directive.
Army Property
Real or personal property of the United States or its
instrumentalities and, if the United States is responsible therefore,
real or personal property of a foreign government which is in the
possession or control of the Army, one of its instrumentalities, or the
Army National Guard, including property of an activity for which the
Army has been designated the administrative agency, and property located
in an area in which the Army has been assigned single service claims
responsibility.
Centralized Organization
That organization of a DOD component responsible for coordinating
and monitoring of criminal, civil, contractual, and administrative
remedies relating to contract fraud. For DOD components other than the
Army, the Centralized organizations are as follows: the Office of
General Counsel, Department of the Air Force; the Office of the
Inspector General, Department of the Navy; and the Office of General
Counsel, Defense Logistics Agency.
Claim
The Government's right to recover money or property from any
individual, partnership, association, corporation, governmental body, or
other legal entity (foreign and domestic) except an instrumentality of
the United States. A claim against several joint debtors or tortfeasors
arising from a single transaction or incident will be considered one
claim.
Claims Officer
A commissioned officer, warrant officer, or qualified civilian
employee designated by the responsible commander and trained or
experienced in the conduct of investigations and the processing of
claims.
Corruption
Practices that include, but are not limited to, solicitation, offer,
payment, or acceptance of bribes or gratuities; kickbacks; conflicts of
interest; or unauthorized disclosure of official information related to
procurement matters.
Counsel for Consultation
An attorney, provided by DA at no expense to the military member or
civilian employee, who will provide legal advice to the witness
concerning the authority of OSC, the nature of an OSC interview and
their individual rights and obligations. The counsel may accompany the
witness to the interview and advise the witness during the interview. No
attorney-client relationship is established in this procedure.
Counsel for Representation
An attorney, provided by DA at no expense to the military member or
civilian employee, who will act as the individual's lawyer in all
contacts with the MSPB and the OSC during the pendancy of the OSC
investigation and any subsequent OSC initiated action before the MSPB.
An attorney-client relationship will be established between the
individual and counsel for representation.
DA Personnel
DA personnel includes the following:
a. Military and civilian personnel of the Active Army and The U.S.
Army Reserve.
b. Soldiers of the Army National Guard of the United States (Title
10, U.S.C.) and, when specified by statute or where a Federal interest
is involved, soldiers in the Army National Guard (Title 32, U.S.C.). It
also includes technicians under 32 U.S.C. 709(a)(d).
c. USMA cadets.
d. Nonappropriated fund employees.
e. Foreign nationals who perform services for DA overseas.
f. Other individuals hired by or for the Army.
Debarment
Administrative action taken by a debarring authority to exclude a
contractor from Government contracting and Government-approved
subcontracting for a specified period.
Deciding Official (Chapter 7)
SJA, legal adviser, or Litigation Division attorney who makes the
final determination concerning release of official information.
DOD Criminal Investigation Organizations
Refers to the USACIDC; the Naval Investigative Service; the U.S. Air
Force Office of Special Investigations; and the Defense
[[Page 130]]
Criminal Investigative Service, Office of the Inspector General, DOD.
Fraud
Any intentional deception of DOD (including attempts and
conspiracies to effect such deception) for the purpose of inducing DOD
action or reliance on that deception. Such practices include, but are
not limited to, the following: bid-rigging; making or submitting false
statements; submission of false claims; use of false weights or
measures; submission of false testing certificates; adulterating or
substituting materials; or conspiring to use any of these devices.
Improper or Illegal Conduct
a. A violation of any law, rule, or regulation in connection with
Government misconduct; or
b. Mismanagement, a gross waste of funds, an abuse of authority, or
a substantial and specific danger to public health or safety.
Information Exempt From Release To The Public
Those categories of information which may be withheld from the
public under one or more provisions of law.
Judge Advocate
An officer so designated (AR 27-1).
Legal Adviser
A civilian attorney who is the principal legal adviser to the
commander or operating head of any Army command or agency.
Litigation
Legal action or process involving civil proceedings, i.e.,
noncriminal.
Litigation in Which The United States Has an Interest
a. A suit in which the United States or one of its agencies or
instrumentalities has been, or probably will be, named as a party.
b. A suit against DA personnel and arises out of the individual's
performance of official duties.
c. A suit concerning an Army contract, subcontract, or purchase
order under the terms of which the United States may be required to
reimburse the contractor for recoveries, fees, or costs of the
litigation.
d. A suit involving administrative proceedings before Federal,
state, municipal, or foreign tribunals or regulatory bodies that may
have a financial impact upon the Army.
e. A suit affecting Army operations or which might require, limit,
or interfere with official action.
f. A suit in which the United States has a financial interest in the
plaintiff's recovery.
g. Foreign litigation in which the United States is bound by treaty
or agreement to ensure attendance by military personnel or civilian
employees.
Medical Care
Includes hospitalization, outpatient treatment, dental care, nursing
service, drugs, and other adjuncts such as prostheses and medical
appliances furnished by or at the expense of the United States.
Misdemeanor
An offense for which the maximum penalty does not exceed
imprisonment for 1 year. Misdemeanors include those offenses categorized
as petty offenses (18 USC Sec. 3559).
Official Information
All information of any kind, however stored, that is in the custody
and control of the Department of Defense, relates to information in the
custody and control of the Department, or was acquired by DoD personnel
as part of their official duties or because of their official status
within the Department while such personnel were employed by or on behalf
of the Department or on active duty with the United States Armed Forces.
Operating Forces
Those forces whose primary missions are to participate in combat and
the integral supporting elements thereof. Within DA, the operating
forces consist of tactical units organized to conform to tables of
organization and equipment (TOE).
Personnel Action
These include--
a. Appointment.
b. Promotion.
c. Adverse action under 5 U.S.C. 7501 et seq. or other disciplinary
or corrective action.
d. Detail, transfer, or reassignment.
e. Reinstatement.
f. Restoration.
g. Reemployment.
h. Performance evaluation under 5 U.S.C. 4301 et seq.
i. Decision concerning pay, benefits, or awards, or concerning
education or training if the education or training may reasonably be
expected to lead to an appointment, promotion, performance evaluation,
or other personnel action.
j. Any other significant change in duties or responsibilities that
is inconsistent with the employee's salary or grade level.
Private Litigation
Litigation other than that in which the United States has an
interest.
[[Page 131]]
Process
The legal document that compels a defendant in an action to appear
in court; e.g., in a civil case a summons or subpoena, or in a criminal
case, a warrant for arrest, subpoena or summons.
Prohibited Personnel Practice
Action taken, or the failure to take action, by a person who has
authority to take, direct others to take, recommend, or approve any
personnel action--
a. That discriminates for or against any employee or applicant for
employment on the basis of race, color, religion, sex, national origin,
age, handicapping condition, marital status, or political affiliation,
as prohibited by certain specified laws.
b. To solicit or consider any recommendation or statement, oral or
written, with respect to any individual who requests, or is under
consideration for, any personnel action, unless the recommendation or
statement is based on the personal knowledge or records of the person
furnishing it, and consists of an evaluation of the work performance,
ability, aptitude, or general qualifications of the individual, or an
evaluation of the character, loyalty, or suitability of such individual.
c. To coerce the political activity of any person (including the
providing of any political contribution or service), or take any action
against any employee or applicant for employment as a reprisal for the
refusal of any person to engage in such political activity.
d. To deceive or willfully obstruct any person with respect to such
person's right to compete for employment.
e. To influence any person to withdraw from competition for any
position for the purpose of improving or injuring the prospects of any
other person for employment.
f. To grant any preference or advantage not authorized by law, rule,
or regulation to any employee or applicant for employment (including
defining the scope or manner of competition or the requirements for any
position) for the purpose of improving or injuring the prospects of any
particular person for employment.
g. To appoint, employ, promote, advance, or advocate for
appointment, employment, promotion, or advancement, in or to a civilian
position any individual who is a relative (as defined in 5 U.S.C. 3110)
of the employee, if the position is in the agency in which the employee
is serving as a public official or over which the employee exercises
jurisdiction or control as an official.
h. To take or fail to take a personnel action with respect to any
employee or applicant for employment as a reprisal for being a
whistleblower, as defined below.
i. To take or fail to take a personnel action against an employee or
applicant for employment as a reprisal for the exercise of any appeal
right granted by law, rule, or regulation.
j. To discriminate for or against any employee or applicant for
employment on the basis of conduct that does not adversely affect the
performance of the employee or applicant or the performance of others.
k. To take or fail to take any other personnel action if the taking
of, or failure to take, such action violates any law, rule, or
regulation implementing, or directly concerning, the merit system
principles contained in 5 U.S.C. 2301.
Prosecutive Authorities
These include--
a. A U.S. Attorney;
b. A prosecuting attorney of a State or other political subdivision
when the U.S. Attorney has declined to exercise jurisdiction over a
particular case or class of cases; and
c. An SJA of a general court-martial convening authority considering
taking action against a person subject to the UCMJ.
Recovery JA
A JA or legal adviser responsible for assertion and collection of
claims in favor of the United States for property claims and medical
expenses.
Significant Case of Fraud and Corruption
A procurement fraud case involving an alleged loss of $100,000 or
more; all corruption cases related to procurement that involve bribery,
gratuities, or conflicts of interest; any defective products or product
substitution in which a serious hazard to health, safety or operational
readiness is indicated, regardless of loss value; and, any procurement
fraud case that has received or is expected to receive significant media
coverage.
Staff Judge Advocate
An officer so designated (AR 27-1). The SJA of an installation, a
command or agency reporting directly to HQDA, or of a major subordinate
command of the U.S. Army Materiel Command, and the senior Army JA
assigned to a joint or unified command.
Subpoena
A process to cause a witness to appear and give testimony, e.g., at
a trial, hearing, or deposition.
Suspension
Administrative action taken by a suspending authority to temporarily
exclude a contractor from Government contracting and Government-approved
subcontracting.
[[Page 132]]
Suspension and Debarment Authorities
Officials designated in DFARS, section 9.403, as the authorized
representative of the Secretary concerned.
Tortfeasor
A wrongdoer; one who commits a tort.
Appendix G to Part 516--Figures
This appendix contains figures cited or quoted throughout the text
of this part.
Figure C-1. Sample Answer to Judicial Complaint, With Attached
Certificate of Service
In the United States District Court for the Southern District of
Texas Corpus Christi Division, No. C-90-100
John Doe, Plaintiff v. Togo D. West, Jr., Secretary of the Army,
Department of the Army, Defendant.
First Affirmative Defense
The Complaint is barred by laches.
Figure C-3. Sample Answer to Judicial Complaint, with attached
Certificate of Service. This is intended to be used as a guide in
preparing a draft Answer as part of a Litigation Report.
Answer
For its answer to the complaint, defendant admits, denies and
alleges as follows:
1. Admits.
2. Denies.
3. Denies.
4. The allegations contained in paragraph 4 are conclusions of law
to which no response is required; to the extent they may be deemed
allegations of fact, they are denied.
5. Denies the allegations contained in the first sentence of
paragraph 5; admits the allegations contained in the second sentence of
paragraph 5; denies the remainder of the allegations in paragraph 5.
6. Denies the allegations in paragraph 6 for lack of knowledge or
information sufficient to form a belief as to their truth.
7. Denies each allegation in the complaint not specifically admitted
or otherwise qualified.
Prayer for Relief
The remainder of plaintiff's Complaint contains his prayer for
relief, to which no answer is required. Insofar as an answer is
required, denies that plaintiff is entitled to any relief whatsoever.
Defendant respectfully prays that the Court dismiss plaintiff's
Complaint and award to defendant costs and such further relief as the
Court deems proper.
Respectfully submitted,
Ronald M. Ford,
United States Attorney.
Roy A. Andersen,
Assistant United States Attorney, 606 N. Carancua, Corpus Christi, Texas
78476, (512) 884-3454.
Captain Christopher N. Jones,
Department of the Army, Office of the Judge, Advocate General, 901 N.
Stuart St., Suite 400, Arlington, Virginia 22203-1837, (703)
696-1666.
Certificate of Service
I hereby certify that a true and correct copy of Defendant's Answer
has been placed in the mail, postage prepaid, this ---- day of --------
--, 1991, addressed to plaintiff's counsel as follows: Mr. Eugene
Henderson, 777 Fourth Street, Corpus Christi, TX 78888.
Roy A. Andersen,
Assistant United States Attorney.
Sample DA Form 4
Figure C-3. Unsworn Declaration Under Penalty of Perjury Executed Within
the United States
Declaration Under Penalty of Perjury
I am Private Paul Jones, currently assigned to Company B, 4th
Battalion, 325th Parachute Infantry Regiment, Fort Bragg, North
Carolina. I have personal knowledge of the following matters.
On the evening of 3 June 1970, I was present at the company party at
Lake Popolopen when the accident occurred. I saw a bright, full moon
that evening.
I declare under penalty of perjury that the foregoing is true and
correct. (28 U.S.C. Sec. 1746).
Executed on: ----------
Paul Jones,
Private, U.S. Army.
Figure D-1. Format for a Request for a Representation Using an Unsworn
Declaration Under Penalty of Perjury Executed Within the United States
Request for Representation
I request that the Attorney General of the United States, or his
agent, designate counsel to defend me in my official and individual
capacities in the case of John Doe v. Private Paul Jones, now pending in
the U.S. District Court for the Eastern District of North Carolina. I
have read the complaint filed in this case and I declare that all my
actions were performed in my official capacity, within the scope of my
official duties, and in a good faith belief that my actions conformed to
the law. I am not aware of any pending related criminal investigation.
[[Page 133]]
I understand the following: if my request for representation is
approved, I will be represented by a U.S. Department of Justice
attorney; that the United States is not required to pay any final
adverse money judgment rendered against me personally, although I can
request indemnification; that I am entitled to retain private counsel at
my own expense; and, that the Army expresses no opinion whether I should
or should not retain private counsel.
I declare under penalty of perjury that the foregoing is true and
correct. (28 U.S.C. Sec. 1746).
Executed on: ----------
Paul Jones,
Private, U.S. Army.
Figure D-2. Format for Scope of Employment Statement Using an Unsworn
Declaration Under Penalty of Perjury Executed Outside the United States
Declaration
I am currently the Commander of HHC, 6th Armored Division, Bad
Vilbel, Germany. I have read the allegations concerning Private Paul
Jones in the complaint of John Doe v. Private Paul Jones, now pending in
the U.S. District Court for the Eastern District of North Carolina.
At all times relevant to the complaint, I was Private Jones' company
commander. His actions relevant to this case were performed within the
scope of his official duties as Assistant Charge of Quarters, Company B,
4th Battalion, 325th Parachute Infantry Regiment, Fort Bragg, North
Carolina.
I declare under penalty of perjury under the laws of the United
States of America that the foregoing is true and correct. (28 U.S.C.
Sec. 1746).
Executed on: ----------
John Smith,
Captain, Infantry.
Figure D-3. Format for Contractor Request for Representantion
Request for Representation
I am the President of the XYZ Corporation. I request the Attorney
General of the United States designate counsel to defend me and my
company in Doe v. XYZ, Inc., now pending in the U.S. District Court for
the Eastern District of North Carolina.
I understand that the assumption by the Attorney General of the
defense of this case does not alter or increase the obligations of the
United States under United States Contract No. WP-70-660415.
I further agree that such representation will not be construed as
waiver or estoppel to assert any rights which any interested party may
have under said contract.
Executed on: ----------
D.D. Tango,
President, XYZ, Inc.
Figure G-1. Sample ``Touhy'' Compliance Letter
Department of the Army, Office of the Staff Judge Advocate, Fort Smith,
North Dakota 84165, 15 April 1993
Mr. T. Hudson Taylor,
Attorney At Law, 105 Hay Street, Whynot, ND 84167
Dear Mr. Taylor: We have learned that you subpoenaed Captain Roberta
Selby to testify at a deposition in the case Kramer v. Kramer, currently
filed in state court, and that you directed her to bring her legal
assistance file concerning her client, SSG Kramer.
Under 32 CFR Secs. 97.6(c), 516.35, and 516.40, the Army must
authorize the appearance of its personnel or the production of official
documents in private litigation. In this case, the Army cannot authorize
Captain Selby to appear or produce the requested file absent the
following:
You must request in writing her appearance and the production of the
file in accordance with Department of Defense directives, 32 CFR
Sec. 97.6(c), and Army regulations, 32 CFR Secs. 516-34--516.40. The
request must include the nature of the proceeding, 32 CFR
Sec. 516.34(b), and the nature and relevance of the official information
sought. Id. Sec. 516.35(d). We cannot act on your request until we
receive the required information. See, for example, United States ex
rel. Touhy v. Ragen, 340 U.S. 462 (1951); Boron Oil Co. v. Downie, 873
F.2d 67 (4th Cir. 1989); United States v. Bizzard, 674 F.2d 1382 (11th
Cir. 1982); United States v. Marino, 658 F.2d 1120 (6th Cir. 1981);
United States v. Allen, 554 F.2d 398 (10th Cir. 1977).
To overcome Federal statutory restrictions on the disclosure of the
requested file imposed by the Privacy Act, 5 U.S.C. Sec. 552a, you must
provide either a written release authorization signed by the individual
to whom the file pertains (that is, SSG Kramer) or a court ordered
release signed by a judge of a court of competent jurisdiction. A
subpoena signed by a clerk of court, notary, or other official is
insufficient. See, for example, Doe v. DiGenova, 779 F.2d 74 (DC Cir.
1985).
In this case, because of the attorney-client relationship between
Captain Selby and SSG Kramer, you must produce a written waiver of the
attorney-client privilege from SSG Kramer. Because the privilege may
protect both documents and testimony, Captain Selby may not divulge such
information without SSG Kramer's consent. See, for example, Rule of
Professional Conduct for Army Lawyers 1.6(a).
In addition to the above requirements, Captain Selby's supervisor
must approve her absence from duty. See 32 CFR Sec. 516.43. In this
regard, we suggest you take the deposition at Fort Smith. In any event,
however, you or your client must pay all travel expenses, as this is
purely private litigation and witness'
[[Page 134]]
appearance must be at no expense to the United States. See id.
Sec. 516.48(c).
Finally, if Captain Selby does appear as a witness, she may only
give factual testimony. She may not testify as an opinion or expert
witness. This limitation is based on Department of Defense and Army
policy that generally prohibits Government employees from appearing as
expert witnesses in private litigation. See id. Secs. 97.6(e), 516.42.
Our sole concern in this matter is to protect the interests of the
United States Army; the Army will not block access to witnesses or
documents to which you are lawfully entitled. So that the Army can
adequately protect its interests in this matter, I request that you
respond to this letter by 27 April 1993. If you have any questions,
please call CPT Taylor at 919-882-4500.
Sincerely,
Robert V. Jackansi,
Major, JA, Chief, Administrative Law.
Figure G-2. Sample Fact Witness Approval Letter
Department of the Army, Office of the Staff Judge Advocate, Fort Smith,
North Dakota 84165, 15 April 1993
Mr. T. Hudson Taylor,
Attorney At Law, l05 Hay Street, Whynot, ND 84167
Dear Mr. Taylor: This letter responds to your request to interview
and depose Captain Buzz Sawyer as a witness in Morgan v. Jones. Subject
to the following conditions, your request is approved.
This grant of authority is limited to factual testimony only.
Captain Sawyer may not testify as an expert witness. This limitation is
based on Army policy prohibiting Government employees from appearing as
expert witnesses in private litigation. See 32 CFR Sec. 516.42. Captain
Sawyer may not provide official information that is classified,
privileged, or otherwise protected from public disclosure.
The decision whether to testify in private litigation is within the
discretion of the prospective witness. This authorization is also
subject to the approval of the witness' supervisors to be absent during
the period involved. Finally, because this is private litigation, the
witness' participation must be at no expense to the United States. See
32 CFR Sec. 516.48.
If you have any questions, please call CPT Taylor at 919-882-4500.
Sincerely,
Robert V. Jackansi,
Major, JA, Chief, Administrative Law
Figure G-3. Sample Expert Witness Denial Letter
Department of the Army, Office of the Staff Judge Advocate, Fort Smith,
North Dakota 84165, 15 April 1993
Mr. T. Hudson Taylor,
Attorney At Law, l05 Hay Street, Whynot, ND 84167
Dear Mr. Taylor: This responds to your request for Mr. Charles
Montrose to appear as an expert witness in private litigation: Smithers
v. ABC Video. For the following reasons, the request is denied.
Army Regulation 27-40 forbids Army personnel from providing expert
testimony in private litigation, with or without compensation, except
under the most extraordinary circumstances. See 32 CFR Secs. 97.6(e),
516.42. Several reasons support the exercise of strict control over such
witness appearances.
The Army policy is one of strict impartiality in litigation in which
the Army is not a named party, a real party in interest, or in which the
Army does not have a significant interest. When a witness with an
official connection with the Army testifies, a natural tendency exists
to assume that the testimony represents the official view of the Army,
despite express disclaimers to the contrary.
The Army is also interested in preventing the unnecessary loss of
the services of its personnel in connection with matters unrelated to
their official responsibilities. If Army personnel testify as expert
witnesses in private litigation, their official duties are invariably
disrupted, often at the expense of the Army's mission and the Federal
taxpayer.
Finally, the Army is concerned about the potential for conflict of
interest inherent in the unrestricted appearance of its personnel as
expert witnesses on behalf of parties other than the United States. Even
the appearance of such conflicts of interest seriously undermines the
public trust and confidence in the integrity of our Government.
This case does not present the extraordinary circumstances necessary
to justify the requested witness' expert testimony. You have
demonstrated no exceptional need or unique circumstances that would
warrant (his or her) appearance. The expert testimony desired can be
secured from non-Army sources. Consequently, we are unable to grant you
an exception to the Army's policy.
If you have any questions, please call me or CPT Taylor at 919-882-
4500.
Sincerely,
Robert V. Jackansi,
Major, JA, Chief, Administrative Law.
[[Page 135]]
Figure G-4. Sample of Doctor Approval Letter
Department of the Army, Office of the Staff Judge Advocate, Fort Smith,
North Dakota 84165, 15 April 1993
Mr. T. Hudson Taylor,
Attorney At Law, 105 Hay Street, Whynot, ND 84167
Dear Mr. Taylor: This responds to your request to depose Dr. (MAJ)
J. McDonald, Fort Smith Medical Treatment Facility. Pursuant to 32 CFR
Secs. 516.33-516.49, you may depose him subject to the following
conditions:
He may testify as to his treatment of his patient, Sergeant Rock, as
to related laboratory tests he may have conducted, or other actions he
took in the regular course of his duties.
He must limit his testimony to factual matters such as his
observations of the patient or other operative facts, the treatment
prescribed or corrective action taken, course of recovery or steps
required for treatment of injuries suffered, or contemplated future
treatment.
His testimony may not extend to hypothetical questions or to a
prognosis. He may not testify as an ``expert.'' This limitation is based
on Department of Defense and Army policy prohibiting present or former
military personnel and Army civilian employees from providing opinion or
expert testimony concerning official information, subjects, or
activities in private litigation. See 32 CFR Secs. 97.6(e), 516.42.
The witnesses may not provide official information that is
classified, privileged, or otherwise protected from public disclosure.
To protect the Army's interests, CPT Taylor or another Army attorney
will be present during the depositions.
To overcome restrictions imposed by the Privacy Act, 5 U.S.C.
Sec. 552a, Dr. McDonald may not discuss matters derived from the
patient's medical records absent the patient's written consent or a
court order signed by a judge. A subpoena issued by someone other than a
judge or magistrate is insufficient. See Doe v. DiGenova, 779 F.2d 74
(D.C. Cir. 1985); Stiles v. Atlanta Gas Light Co., 453 F. Supp. 798
(N.D. Ga. 1978).
The decision whether to testify in private litigation is within the
discretion of the witness, subject to the approval of his supervisors to
be absent during the period involved.
Finally, because this is private litigation, the witnesses'
participation must be at no expense to the United States. See 32 CFR
Sec. 516.48.
If you have any questions, please call me or CPT Taylor at 919-882-
4500.
Sincerely,
Robert V. Jackansi,
Major, JA, Chief, Administrative Law.
Figure H-1. Procurement Fraud Indicators
Procurement Fraud Indicators
1. During the identification of the government and services.
a. Need determinations for items currently scheduled for disposal or
reprocurement, or which have predetermined reorder levels.
b. Excessive purchase of ``expendables'' such as drugs or auto
parts.
c. Inadequate or vague need assessment.
d. Frequent changes in the need assessment or determination.
e. Mandatory stock levels and inventory requirements appear
excessive.
f. Items appear to be unnecessarily declared excess or sold as
surplus, while same items are being reprocured.
g. It appears that an item or service is being purchased more as a
result of aggressive marketing efforts rather than in response to a
valid requirement.
h. Need determination appears to be unnecessarily tailored in ways
that can only be met by certain contractors.
i. Items and services are continually obtained from the same source
due to an unwarranted lack of effort to develop second sources.
2. During the development of the statements of work and
specifications.
a. Statements of work and specifications appear to be intentionally
written to fit the products or capabilities of a single contractor.
b. Statements of work, specifications, or sole source justifications
developed by or in consultation with a preferred contractor.
c. Information concerning requirements and pending contracts is
released only to preferred contractors.
d. Allowing companies and industry personnel who participated in the
preparation of bid packages to perform on subsequent contracts in either
a prime or subcontractor capacity.
e. Release of information by firms or personnel participating in
design or engineering to companies competing for prime contract.
f. Prequalification standards or specifications appear designed to
exclude otherwise qualified contractors or their productions.
g. Requirements appear split up to allow for rotating bids, giving
each contractor his or her ``fair share.''
h. Requirements appear split up to meet small purchase requirements
(that is, $25,000) or to avoid higher levels of approval that would be
otherwise required.
i. Bid specifications or statement of work appear inconsistent with
the items described in the general requirements.
j. Specifications appear so vague that reasonable comparisons of
estimate would be difficult.
[[Page 136]]
k. Specifications appear inconsistent with previous procurements of
similar items of services.
3. During the presolicitation phase.
a. Sole source justifications appear unnecessary or poorly
supported.
b. Statements justifying sole source or negotiated procurements
appear inadequate or incredible.
c. Solicitation documents appear to contain unnecessary requirements
which tend to restrict competition.
d. Contractors or their representatives appear to have received
advanced information related to the proposed procurement on a
preferential basis.
4. During the solicitation phase.
a. Procurement appears to be processed so as to exclude or impede
certain contractors.
b. The time for submission of bids appears to be unnecessarily
limited so that only those with advance information have adequate time
to prepare bids or proposals.
c. It appears that information concerning the procurement has been
revealed only to certain contractors, without being revealed to all
prospective competitors.
d. Bidders conferences are conducted in a way that apparently
invites bid rigging, price fixing, or other improper collusion between
contractors.
e. There is an apparent intentional failure to fairly publish notice
of the solicitation.
f. Solicitation appears vague as to the details such as time, place
and manner, of submitting acceptable bids.
g. There is evidence of improper communications or social contract
between contractors and government personnel.
h. Controls over the number and destination of bid packages sent to
interested bidders appear inadequate.
i. Indications that government personnel or their families may own
stock or have some other financial interest in either a contractor or
subcontractor.
j. Indications that government personnel are discussing possible
employment for themselves or a family member with a contractor or
subcontractor or indications that a proposal for future employment from
a contractor or subcontractor to a government employee or his or her
family members has not been firmly rejected.
k. Indications that any contractor has received special assistance
in preparation of his or her bid or proposal.
l. It appears that a contract is given an expressed or implied
reference to a specific subcontractor.
m. Failure to amend solicitation to reflect necessary changes or
modifications.
5. During the submission of bids and proposals.
a. Improper acceptance of a late bid.
b. Documents, such as receipts, appear falsified to obtain
acceptance of a late bid.
c. Improperly attempting to change a bid after other bidders prices
are known.
d. Indications that mistakes have been deliberately planted in a bid
to support correction after bid opening.
e. Withdrawal by a low bidder who may later become a subcontractor
to a higher bidder who gets the contract.
f. Apparent collusion or bid rigging among the bidders.
g. Bidders apparently revealing their prices to each other.
h. Required contractor certifications appear falsified.
i. Information concerning contractor's qualifications, finances, and
capabilities appears falsified.
6. During the evaluation of bids and proposals.
a. Deliberately losing or discarding bids of certain contractors.
b. Improperly disqualifying the bids or proposals of certain
contractors.
c. Accepting apparently nonresponsive bids from preferred
contractors.
d. Unusual or unnecessary contacts between government personnel and
contractors during solicitation, evaluation, and negotiation.
e. Any apparently unauthorized release of procurement information to
a contractor or to non-government personnel.
f. Any apparent favoritism in the evaluation of the bid or proposal
of a particular contractor.
g. Apparent bias in the evaluation criteria or in the attitude or
actions of the members of the evaluation panel.
7. During contract formation and administration.
a. Defective pricing by the contractor usually associated with
submitting false cost and pricing data under the Truth in Negotiation
Act.
b. Cost/Labor mischarging.
c. Product substitution.
d. Progress payment fraud. For more details on these subjects see DA
PAM 27-153, Contract Law, paragraph 23-5.
Figure H-2. Guide for Preparing Remedies Plan
Guide for Preparing a Remedies Plan
(Date of Plan)
Section I (Administrative Data)
A. Subject of Allegation.
B. Principal Investigative Agency.
C. Investigative Agency File Number.
D. Subject's Location.
E. Location Where Offense Took Place.
F. Responsible Action Commander.
G. Responsible MACOM.
H. Contract Administrative Data (If Applicable):
1. Contract Number.
[[Page 137]]
2. Type of Contract.
3. Dollar Amount of Contract.
4. Period of Contract.
I. Principal Case Agent (Name and Telephone Number).
J. Civilian Prosecutor (If Applicable) (Name, Address, and Telephone
Number).
K. Is Grand Jury Investigating This Matter? If So, Where is Grand Jury
Located?
L. Audit Agency Involved (If Applicable). Name and Telephone Number of
Principal Auditor.
M. Suspense Date for Update of This Plan.
Section II (Summary of Allegations and Investigative Results to Date)
(Provide sufficient detail for reviewers of the plan to evaluate the
appropriateness of the planned remedies. If information is ``close-
hold'' or if grand jury secrecy applies, so state.)
Section III (Adverse Impact Statement)
(Describe any adverse impact on the DA/DOD mission. Adverse impact
is described in DOD Directive 7050.5, paragraph E.1.g. Identify impact
as actual or potential. Describe the impact in terms of monetary loss,
endangerment to personnel or property, mission readiness, etc. This
information should be considered in formulating your remedies as
described below and provided to prosecutors for their use in prosecution
of the offenses.)
Section IV (Remedies Taken and/or Being Pursued)
A. Criminal Sanctions. (As a minimum, address the following: Are
criminal sanctions appropriate? If so, which ones? If not, why not? Has
the local U.S. Attorney or other civilian prosecutor been notified and
briefed? What actions have been taken or are intended? If and when
action is complete, describe action and final results of the action.
Other pertinent comments should be included.)
B. Civil Remedies. (As a minimum address the following: Which civil
remedies are appropriate? Has the local U.S. Attorney or other civilian
prosecutor been notified and briefed? How, when, where and by whom are
the appropriate civil remedies implemented? If and when action is
completed, describe action and final results. Other pertinent comments
should be included.)
C. Contractual/Administrative Remedies. (As a minimum, address the
following: Are contractual and administrative remedies appropriate: If
so, which ones? If not, Why? If contractual or administrative remedies
are considered appropriate, describe how, when, and by whom the remedies
are implemented. If and when action is completed, describe action and
results of the action. Other pertinent comments should be included.)
D. Restrictions on Remedies Action. (Comment as to why obvious
remedies are not being pursued. For example, the U.S. Attorney requests
suspension action held in abeyance pending criminal action.)
Section V (Miscellaneous Comments/Information)
Section VI (Remedies Plan Participants)
(Record the name, grade, organization, and telephone number of all
Remedies Plan participants.)
Section VII (MACOM Coordination Comments)
(Record the name, grade, office symbol, and telephone number of all
MACOM officials providing coordination comments; record the date when
comments are submitted and append to the Remedies Plan the signed
comments provided.)
MACOM Focal Point
(Record the name, grade, office symbol, and telephone number of the
MACOM focal point.)
Section VIII (Coordination/Comments)
(Record the name, grade, organization, office symbol, and telephone
number of all officials with whom you have coordinated the Remedies Plan
or who have provided comments on your plan; append any comments provided
to the Remedies Plan.)
Figure H-3. Guide for Testing Defective Items Under Criminal or Civil
Investigation
Testing Defective Items Under Criminal or Civil Investigation
1. Under no circumstances is testing to proceed unless the command
has committed sufficient funding to cover the entire cost of the
projected testing.
2. No testing will be initiated unless there has been a written
request for the testing to the appropriate Procurement Fraud Advisor
from a criminal investigator or Assistant United States Attorney or
Department of Justice Attorney (AUSA is used in these procedures to
indicate either an AUSA or Department of Justice attorney). If they have
not already done so, criminal investigators should be requested to
coordinate their testing requests with the AUSA overseeing the
investigation.
3. Barring extraordinary circumstances, only one test will be
conducted to support the criminal and civil recovery efforts of a
procurement fraud/irregularity matter. Early coordination with the Civil
Division of Department of Justice or the local United States Attorneys
Office is necessary to ensure that testing funds are not wasted.
[[Page 138]]
4. The request for testing should include a clear, concise statement
of the purpose of the testing to include a statement of the allegations
made and the contact number(s) involved. Any test plan which requires
destructive testing must be approved by the AUSA.
5. No testing will be initiated unless a test plan has been
developed which states the following:
a. the contract number(s) involved
b. the National Stock Number (NSN) of the item to be tested
c. the purpose of the testing
d. the alleged defect or the contractual requirement violated
e. the CID report of investigation (ROI) number or the DCIS case number
f. cost of the test (a cost proposal should be an attachment to the test
plan)
g. where the test will be conducted
h. how the test will be conducted
i. the name and telephone number of the test team leader
j. the names of all test team members
k. the approximate dates of the testing
l. the date that completion of the test is required
m. a clear statement of the desired product (that is test report, raw
data, analysis of results, evaluation of test results)
n. the PRON to fund the testing
o. a retention plan.
6. The test plan shall be coordinated with the concurrence received
in advance from the appropriate personnel in the Procurement
Directorate, Product Assurance and Test Directorate, the Procurement
Fraud Advisor, and the investigator/AUSA requesting the test. No testing
will be initiated until the criminal investigator/AUSA who requested the
testing has approved the test plan.
7. If the items tested are to be retained as evidence, the criminal
investigator should arrange for retention of the evidence. While the
Command will support evidence retention, this is primarily the
responsibility of the criminal investigators. Agents should be advised
that putting items in Code L or similar non-use status is insufficient
to protect it from being released to the field. A decision not to retain
the tested items as evidence must have the approval of the AUSA.
8. All items to be tested should be from a statistically valid
random sample. The sample should conform with the inspection
requirements of the contract or be in conformance with a random sample
specifically developed for the instant test plan. It is recommended that
a statistician be consulted to determine the feasibility of a random
sample specifically created to support the test plan.
9. Results of testing should be available to Command and DA
personnel for appropriate contractual and administrative remedies. Any
request for testing results that indicates that dissemination of the
testing results will be limited by Rule 6(e) of the Federal Rules of
Criminal Procedure is to be forwarded through the MACOM or AMC
Procurement Fraud Coordinator to DA Procurement Fraud Division prior to
the initiation of any testing.
10. Resolution of problems associated with testing requests should
be conducted at the local level. In AMC the authority to refuse a
testing request resides with the Office of Command Counsel. Any disputes
which cannot be resolved at the local level will be forwarded to the AMC
or MACOM Procurement Fraud Coordinator for resolution. This includes
disputes regarding funding or any time sensitive issues.
11. Second requests for testing of the same item due to a change in
the investigative plan require coordination by the PFA with the
investigator and AUSA overseeing the investigation to determine the
deficiencies in the earlier test. Disputes which cannot be resolved
between the AUSA, PFA, and investigator regarding testing are to be
forwarded simultaneously to the MACOM Procurement Fraud Coordinator and
PFD for resolution. The procedures established in paragraphs 5 and 6
apply for second requests for testing with the additional requirement
that the Assistant United States Attorney must be requested to approve
the test plan.
Figure I-1. Guide for Seeking Legal Advice and Representation Before
Office of Special Counsel
Guide for Seeking Legal Advice and Representation Before Office of
Special Counsel
1. Overview
a. DA employees or military members asked to provide information
(testimonial or documentary) to OSC may obtain legal advice through the
Labor Counselor from DA attorneys concerning their rights and
obligations. This includes assistance at any interviews with OSC
investigators. However, an attorney-client relationship will not be
established unless the employee or military member--
(1) Is suspected or accused by the OSC of committing a prohibited
personnel practice or other illegal or improper act; and
(2) Has been assigned counsel by the DA General Counsel.
b. Any military member or employee who reasonably believes that he
or she is suspected or has been accused by OSC of committing a
prohibited personnel practice or other illegal or improper act may
obtain legal representation from DA. The counsel assigned will be from
another DOD component whenever a DA attorney is likely to face a
conflict between the attorney's ethical obligation to the client and DA,
or when
[[Page 139]]
the suspected or accused individual has requested representation from
another DOD component. Outside legal counsel may be retained by DA on
behalf of the member or employee under unusual circumstances and only
with the personal approval of the DOD General Counsel.
c. The DA General Counsel will determine whether a conflict is
likely to occur if a DA attorney is assigned to represent a military
member or civilian. If the DA General Counsel determines a conflict may
occur, or if the suspected or accused employee has requested
representation from another DOD component, the DA General Counsel will
seek the assistance of another General Counsel in obtaining
representation outside DA.
2. Requests for Representation
a. To obtain legal representation, military members or civilian
employees must--
(1) Submit a written request for legal representation through the
Labor and Employment Law Office, Office of the Judge Advocate General,
Department of the Army, to DA General Counsel, explaining the
circumstances that justify legal representation. Copies of all process
and pleadings served should accompany the request.
(2) Indicate whether private counsel, at personal expense, has been
retained.
(3) Obtain written certification from their supervisor that--
(a) They were acting within the scope of official duties; and
(b) DA has not initiated any adverse or disciplinary action against
them for the conduct being investigated by the OSC.
b. Requests for DA legal representation must be approved by the DA
General Counsel.
c. The conditions of legal representation must be explained and
accepted in writing by the member or employee.
3. Limitations on Representation
a. DA will not provide legal representation with respect to a DA
initiated disciplinary action against a civilian employee for committing
or participating in a prohibited personnel practice or for engaging in
illegal or improper conduct. This prohibition applies regardless of
whether the participation or conduct is also the basis for the
disciplinary action proposed by the OSC.
b. In certain situations, counsel provided by DA may be limited to
representing the individual only with respect to some of the pending
matters, if other specific matters of concern to the OSC or MSPB do not
satisfy the requirements contained in this regulation.
4. Attorney-Client Relationship
a. An attorney-client relationship will be established and continued
between the suspected or accused individual and assigned DA counsel.
b. In representing a DA employee or military member, the DA attorney
designated as counsel will act as a vigorous advocate of the
individual's legal interests before the OSC or MSPB. The attorney's
professional responsibility to DA will be satisfied by fulfilling this
responsibility to the employee or military member. Legal representation
may be terminated only with the approval of the DA General Counsel and
normally only on the basis of information not available at the time the
attorney was assigned.
c. The attorney-client relationship may be terminated if the
assigned DA counsel determines, with the approval of the DA General
Counsel, that--
(1) The military member or civilian employee was acting outside the
scope of his or her official duties when engaging in the conduct that is
the basis for the OSC investigation or charge; and
(2) Termination is not in violation of the rules of professional
conduct applicable to the assigned counsel.
d. The DA attorney designated as counsel may request relief from the
duties of representation or counseling without being required to furnish
explanatory information that might compromise confidential
communications between the client and the attorney.
5. Funding
This regulation authorizes cognizant DA officials to approve
requests from military members or civilian employees for travel, per
diem, witness appearances, or other departmental support necessary to
ensure effective legal representation by the designated counsel.
6. Status
A military member's or civilian employee's participation in OSC
investigations, MSPB hearings, and other related proceedings will be
considered official departmental business for time and attendance
requirements and similar purposes.
7. Advice to Witnesses
The following advice to military members and civilian employees
questioned during the course of an OSC investigation may be appropriate
in response to these frequent inquiries:
a. A witness may decline to provide a ``yes'' or ``no'' answer in
favor of a more qualified answer when this is necessary to ensure
accuracy in responding to an OSC interviewer's question.
b. Requests for clarification of both questions and answers are
appropriate to avoid misinterpretation.
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c. Means to ensure verifications of an interview by OSC
investigators are appropriate, whether or not the military member or
civilian employee is accompanied by counsel. Tape recorders may only be
used for this purpose when--
(1) The recorder is used in full view.
(2) All attendees are informed.
(3) The OSC investigator agrees to record the proceeding.
d. Any errors that appear in a written summary of an interview
prepared by the investigator should be corrected before the member or
employee signs the statement. The military member or civilian employee
is not required to sign any written summary that is not completely
accurate. A military member or civilian employee may receive a copy of
the summary as a condition of signing.