Humanitarian construction and partner terms

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1. Building as humanitarian assistance

The Security Assistance Management Manual says that construction or renovation of facilities, when well planned and executed, gives an effective and visible humanitarian capacity-building benefit (SAMM C12.3.5). Contracting offices and engineer agencies should use local contractors, or contractors with design and construction experience in the partner’s territory, whenever possible. Because these projects cost more, take longer and are complex, a memorandum of understanding between the Defense Department and the partner may record what each intends to do. It is non-binding on both sides, but clarifies what the project needs to succeed, and the manual provides a template. How a project is nominated and approved is covered in how a humanitarian assistance project is approved.

2. Government land

Projects funded by Overseas Humanitarian, Disaster, and Civic Aid (OHDACA) that build, renovate or repair a structure, utility system or pavement must sit on land wholly owned or controlled by a partner government (SAMM C12.3.5.1). The combatant command includes the partner’s documents, with an English translation, showing that the property is government owned. If it is not, the command supplies evidence so reviewers can judge whether government control is adequate. That starts with a copy of the entire lease, easement or other legal instrument establishing the government’s control (SAMM C12.3.5.1.1). The American country team vouches for the familiarity and legitimacy of such land agreements in the country (SAMM C12.3.5.1.2).

The command also confirms three things about the arrangement (SAMM C12.3.5.1.3). The landowner cannot revoke the government’s use of the land and facility. That use involves no continuing or future rent to the landowner. And it will last well beyond the useable life of the proposed facility.

3. Standards and site conditions

Construction must meet relevant local and national building codes, use designs and materials consistent with other local construction and need minimal maintenance (SAMM C12.3.5.2). Where the partner has no building standards, projects meet the International Building Code. OHDACA-funded construction need not meet American building codes or military construction requirements. The site must be accessible to Defense Department personnel throughout the project, for management, oversight and inspections (SAMM C12.3.5.5). Contracts must make sure that any excess construction material bought with OHDACA funds becomes the property of the partner government, for upkeep of the facility or another humanitarian purpose (SAMM C12.3.5.6).

Some kinds of building carry their own considerations. School projects should allow for latrines and hand washing stations suited to the expected pupils (SAMM C12.3.5.9). Hospitals and clinics should consider the medical equipment needed to make the facility usable at once (SAMM C12.3.5.10). A parking lot or driveway may be repaired or built as part of a funded facility, if the paving is reasonably necessary for the facility to function (SAMM C12.3.5.11).

4. Estimating the cost

A proposal should identify and justify the whole required scope and its cost estimate, regardless of expected funding levels (SAMM C12.3.5.3). Many projects resemble earlier ones, so commands are encouraged to reuse existing designs, such as design documents from schools already built in the region. Construction costs include surveys and site preparation, the facilities themselves, integral equipment and supporting utilities. They also include planning, supervision, administration, contingency and overhead, and assessments done after the project is submitted for approval.

An accurate engineering estimate may need a technical survey, so commands may spend up to 10 percent of their OHDACA allocation on pre-construction scoping (SAMM C12.3.5.3.1). Scoping produces detailed scopes of work and independent government estimates, identifies critical issues and confirms that an engineering solution is viable. It may not include the engineering needed to compete the contract. Its costs are not part of any one project, and are recorded in the program’s information system as an OHDACA expense.

5. Sharing the work

Shared-cost construction is permitted, but often needs a binding international agreement, approved by the State Department, setting how costs are split (SAMM C12.3.5.7). A single contractor should do all the funded work where possible, to limit risk. The manual notes that it is often better for the partner to put its share into other tasks, such as equipping the facility or bringing municipal utilities to the site. A command may supply materials to skilled partner military personnel to do a construction job with no American construction personnel present (SAMM C12.3.5.8). Mixing American and partner military workers on one project is not authorized, because it amounts to training in non-humanitarian skills.

6. Terms with the partner

OHDACA-funded activities are meant to be carried out in full collaboration with the partner, and the Defense Department will not undertake any activity its government does not support (SAMM C12.3.3.6.1). The Department uses its best efforts to complete each project, but planners must not commit its support before the command funds a project (SAMM C12.3.3.6.2). Without a binding bilateral agreement, they cannot commit the Department to completing a project or warrant its results. Absent a State Department delegation, the Department cannot conclude a binding international agreement with the partner (SAMM C12.3.3.6.3). Any non-binding memorandum or arrangement for a project must be reviewed and approved by the general counsel of the Defense Security Cooperation Agency (DSCA) first.

Activities are carried out free of any partner tax or fee, including sales tax, value added tax and customs fees (SAMM C12.3.3.5). A bilateral agreement or the partner’s own law may provide the relief, and either is preferred to reimbursement. A command that cannot establish tax relief after exhausting all avenues must seek clearance from DSCA with compelling justification. OHDACA funds may not be used for an acquisition and cross-servicing agreement transaction with the partner’s defense ministry or forces, because of the risk of supporting non-humanitarian activity (SAMM C12.3.3.3). The security cooperation organization or project manager makes sure the partner uses what it receives for the stated humanitarian purposes (SAMM C12.3.3.7). Disaster preparedness facilities should go to the partner’s civilian emergency management agency.

Key terms

Construction memorandum	A non-binding memorandum recording what each side intends to do on a humanitarian construction project.
Government control	The requirement that funded building sit on land a partner government owns or controls.
Pre-construction scoping	Survey work before a project is submitted, capped at 10 percent of a command’s allocation.
Shared-cost construction	Building paid for partly by the partner, often needing a binding agreement.
Tax exoneration	The rule that funded activities are carried out free of partner taxes and fees.

Every statement above links to the document behind it. The full source list for this piece is on the sources page.

This page describes public United States government programs for general information. It is not legal, regulatory or procurement advice, and it does not address the facts of any particular case.

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