The military missions of Department of Defense (DOD) units and and Military Department (MILDEP) units, offices, and other organizations drive the needrequirements for facilities and the supporting supporting infrastructure onat any given military installation. Therefore, as the missions assigned to those organizationsAs missions change, or as organizations move to or away from an installation, ornew facilities and supporting infrastructure may need to be built or disposed of to match mission requirements. Similarly, as buildings age or become obsolete, facilities and supporting infrastructureinfrastructure may need to be replaced or reconfigured.

While each of the military departments has its own unique processes, reconfigured, or otherwise modernized to meet mission needs. While each of the MILDEPs has its own unique process for vetting and setting military construction (MILCON) priorities, in general, the MILCON process is formally structured to comply with the DOD’s Planning, Programming, Budgeting, and Execution (PPBE) process of the DOD.¹ Moving from the realization of need (for resource allocation.1 Nevertheless, for most MILCON projects, moving from the realization of a construction need (i.e., a requirements determination) through the planning, programming, and budgeting process could take three or more years for a MILCON project. When adding the time required for congressional authorization and appropriations to fund a project, implementation of the federal contracting process, and the physical construction of the project, the end-to-end military construction process―beginning with the realization of the need for a facility to the opening of its doors for occupancy―may span seven years or more.

The Legal and Budgetary Framework

Chapter 169 of Title 10, United States Code, contains most of the laws governing military construction matters. Section 2801 provides definitions of certain terms used in the chapter and elsewhere in law. It contracting process (e.g., solicitation, awarding the contract, obligating funds, dispersing funds), and physical construction, the end-to-end MILCON process could span five to seven years or more. This report describes and explains the end-to-end MILCON process by which DOD and the Congress act together to build military facilities, beginning with the requirement for a facility, and ending with a completed structure. Additionally, this report provides answers to Frequently Asked Questions (FAQs) about the MILCON process and other associated programs and processes. Examples of relevant MILCON documentation are contained within. The Legal and Budgetary Framework Chapter 169 of Title 10, “Military Construction and Military Family Housing,” contains most of the provisions governing MILCON. Section 2801 of Chapter 169 provides definitions of certain terms used throughout the chapter and elsewhere in law. The section defines the term military construction as “ defines the term military construction as "any construction, development, conversion, or extension of any kind carried out with respect to a military installation, whether to satisfy temporary or permanent requirements, or any acquisition of land or construction of a defense access road."²”2 It also specifies that a military construction MILCON project includes "“all military construction work ... ... necessary to produce a complete and usable facility or a complete and usable improvement to an existing facility (or to produce such portion of a complete and usable facility or improvement as is specifically authorized by law)."

Requirement for Project Authorization

• ”3 The term military installation is defined in Title 10, section 2801(c)(4) to mean “a base, camp, post, station, yard, center, or other activity under the jurisdiction of the Secretary of a military department or, in the case of an activity in a foreign country, under the operational control of the Secretary of a military department or the Secretary of Defense, without regard to the duration of 1 Exceptions include DOD authorities under sections 2803, 2804, 2808, and 2854 of Title 10 of the United States Code (U.S.C.) which are not part of the normal PPBE process. See Department of Defense, Directive 4270.5, Military Construction, p.3, at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/427005p.pdf?ver=2018-1108-080607-280. For more information on the PPBE process, see CRS In Focus IF10429, Defense Primer: Planning, Programming, Budgeting and Execution (PPBE) Process, by Brendan W. McGarry and Heidi M. Peters. 2 10 U.S.C. §2801. 3 Ibid. Congressional Research Service 1 Military Construction: Authorities, Process, and Frequently Asked Questions operational control.” In addition to the definition in Chapter 169 of Title 10, the term military installation under 16 U.S.C. §670(1)(A) means “any land, or interest in land owned by the United States and administered by the Secretary of Defense or the Secretary of a [MILDEP], except land under the jurisdiction of the Assistant Secretary of the Army having responsibility for civil works." In general, these definitions include all buildings, structures, training ranges, and other improvements to real property that reside on a military installation. Authority for MILCON Projects Section 2802 of Title 10 specifies that the Secretary of Defense and the Secretaries of the MILDEPs may carry out such MILCON projects, land acquisitions, and defense access road projects “as are authorized by law.”4 The section goes on to authorize the following activities:      surveys and site preparation; surveys and site preparation;
• acquisition, conversion, rehabilitation, and installation of facilities;
• acquisition and installation of equipment and appurtenances integral to the project;
• acquisition and installation of supporting facilities (including utilities) and appurtenances incident to the project; and
• planning, supervision, administration, and overhead incident to the project.

The MILCON-unique authorization requirements specified in 10 U.S.C. §section 2802 are in addition to those established by 10 U.S.C § 10 U.S.C Section 114, which states that, for specified DOD programs including military construction, " MILCON, “no funds may be appropriated for any fiscal year ... unless funds therefor have been specifically authorized in law".”5 In the practical application of these statutes, Congress has required project-by-project authorization and appropriation for military construction projects.⁴

6 Activities Funded Through Military Construction Appropriations

MILCON Appropriations The annual Military Construction, Veterans Affairs, and Related Agencies appropriation bill providesAppropriation Bill provides federal funding for DOD’s construction activities. Often referred to as the MILCON/VA appropriations bill, theMILCON-VA Appropriations Bill, this piece of legislation appropriates project-specific amounts for major MILCON projects, and also funds and a variety of other construction and construction-related activities, including the following:

• such as:   Unspecified Minor Construction.Minor Construction. Construction projects estimated to cost no more than $6 million under authority provided in 10 U.S.C §2805. Unlike major MILCON projects, unspecified minor construction projects are not subject to specific congressional authorization; therefore, the amounts are appropriated as unspecified minor construction.
• Planning and Design. Congress requires planning and design work on projected construction projects to be far enough . Planning and Design. Congress requires planning and design work on anticipated expenditures for construction projects. This work must be far enough along to provide confidence in the accuracy of the projected budget request. Accordingly, most of the construction projects included in the President'’s annual 4 10 U.S.C. §2821 holds a similar requirement for the construction and acquisition of military family housing. 10 U.S.C. §114(a). 6 For more information on authorizations and appropriations see U.S. Government Accountability Office (GAO), Principals of Federal Appropriations Law, Fourth Edition, Chapter 2, 2016 Rev., GAO-16-464SP, March 10, 2016, pp. 2-54, at https://www.gao.gov/legal/red-book/overview. 5 Congressional Research Service 2 Military Construction: Authorities, Process, and Frequently Asked Questions       budget request are based on planning and design work that was funded by this nonspecific appropriation.⁵
• non-specific appropriation.7 Family Housing (New Construction).New Construction. Replacement, acquisition, expansion, addition, extension, and alteration of government-owned military family housing.⁶
• 8 Family Housing Operation(Operations and Maintenance). and Maintenance. Debt payment, leasing, minor construction, principal and interest charges, and insurance premiums, as well as the provision of routine maintenance, utilities, and the general management of government-owned family housing. Military Privatized Housing. Funding for the Military Housing Privatization Initiative (MHPI) throughgovernment-owned housing for families of servicemembers.
• DOD Housing Funds. Appropriations for the Family Housing Improvement Fund (FHIF) and and the Military Unaccompanied Housing Improvement Fund to assure direct and guaranteed loans, utilize limited partnerships, and suggest DOD-owned property to encourage the private sector to increase available, affordable, and quality housing for military personnel.⁷
• (MUHIF), separately.9 MHPI appropriations allow the military to enter into agreements with private developers selected in a competitive process to own, maintain, and operate family housing through a long-term lease.10 Base Realignment and Closure (BRAC). . Functions associated with the implementation of past BRAC rounds (i.e., continuing environmental restoration and caretaker costs) and/or new BRAC rounds when authorized by Congress.11 BRAC recommendations.⁸
• North Atlantic Treaty Organization (NATO) Security Investment Program. . U.S. contributions to the acquisition and construction of military facilities and installations and for common-use military facilities and installations (including international military headquarters), and for related expenses for the collective defense of the North Atlantic Treaty Area.⁹
• 12 Chemical Demilitarization Construction.. Military construction necessary to support the destruction of the U.S. stockpile of lethal chemical agents and munitions.13 Selected MILCON Authorities Chapter 169 of Title 10 establishes several distinct authorities that allow DOD to perform MILCON and expend funds for other facilities-related activities.14 Each authority typically has a monetary threshold or other stipulated limitation associated with it and these restrictions set the 7 10 U.S.C. §2807. Government-owned military housing for single service members (often referred to as Unaccompanied Housing) is funded as major MILCON (e.g., a new barracks). However, military family housing is funded separately under the general category of “Family Housing.” 9 See subchapter IV of 10 U.S.C. Ch. 169. Treasury funds for MHPI established under 10 U.S.C. §2883. 10 Office of the Assistant Secretary of Defense for Sustainment, Military Housing Privatization, accessed October 21, 2019, at https://www.acq.osd.mil/eie/FIM/Housing/Housing_index.htmlv. 11 Congress is still providing funding for the implementation of fiscal year (FY) 2005 BRAC decisions. FY2019 appropriations for BRAC totaled $342 million. For more information on BRAC implementation see the U.S. Government Accountability Office (GAO) website: Key Issues > Military Base Realignment and Closures, at https://www.gao.gov/key_issues/realigning_closing_military_bases/issue_summary#t=0. 12 10 U.S.C. §2806. The 29 member states of NATO share the expense of common-use facilities by a formula under which the United States is responsible for about 21% of the annual construction budget of the alliance. 13 See Section 1412 of the Department of Defense Authorization Act, 1986 (50 U.S.C. §1521). 14 Chapter 169 of Title 10 also includes authorities that support military housing. 8 Congressional Research Service 3 Military Construction: Authorities, Process, and Frequently Asked Questions framework for the MILCON budget process. They are directly tied to congressional oversight of DOD’s MILCON-related activities. In prescribing the various MILCON authorities and responsibilities, Chapter 169 regularly uses munitions.¹⁰

Selected MILCON Authorities

In prescribing the various authorities and responsibilities, Chapter 169 often uses the term Secretary concernedconcerned, referring to the Secretaries of the military departmentsMILDEPs, or the Secretary of Defense in the case of a defense agency. In the case of MILCON thresholds, authorities, and 15 When examining monetary thresholds and other limitations, it is important to note whether the specific authority applies to the Secretary of Defense Defense, or to each Secretary concernedconcerned individually. Appendix B provides a reference table for selected thresholds and associated requirements.

of selected statutes governing MILCON and repair authorities and lists their limitations, where applicable. Unspecified Minor Construction (10 U.S.C. §2805)

In general, 10 U.S.C §2805 Section 2805 of Title 10 authorizes the Secretary concerned to use an expedited process for the authorization of unspecified minor military construction projects―currently defined as a MILCON projectMILCON projects costing $6 million or less (adjusted annually to reflect the area construction cost index).¹¹ ).16 Under this authority, any project costing more than $750,000 requires advance approval by the Secretary concerned.

Section 2805 requires In general, the Secretary concerned to fundfunds unspecified minor military construction projects only with minor military construction appropriations except in casesas a single amount using MILCON appropriations. However, where the estimated total cost is $2 million or less. In this case, the funds may be drawn from OperationOperations and Maintenance (O&M) appropriations.¹² appropriations, which are generally used to fund civilian salaries and awards, travel, fuel, headquarters operations, expenses of operational military forces, training and education, recruiting, depot maintenance, purchases from Defense Working Capital Funds (e.g., spare parts), base operations support, and other items whose benefits are derived for a limited period of time.17 In practice, these O&M-funded projects are referred to as minor construction projects.

For UMMC For unspecified minor military construction projects exceeding $2 million (and therefore subject to MILCON appropriations authority), 10 U.S.C §2805 requires the Secretary concerned to submit a notification to the appropriate committees.¹³ Thecommittees of Congress.18 This notification is to include a justification for the project andas well as the estimated cost. Following a 14-day waiting period, appropriations may then be drawn from an account set up by Congress in the MILCON appropriation for that purpose.

In addition, 10 U.S.C. §2805 provides temporary authority (throughexpiring September 30, 2025) for the use of O&M, as well as certain Research, Development, Test and Evaluation (RDT&E) appropriations, to fund certain UMMC projects intended to enhance DOD laboratories.¹⁴

Section 2802 of the FY2018 National Defense Authorization Act (NDAA/P.L. 115-91) requires the Secretary concerned to adjust the dollar limitations specified in 10 U.S.C. §2805 for unspecified minor military construction projects inside the United States 15 10 U.S.C. §2801. Construction of military family housing units may not be carried out under the authority of 10 U.S.C. §2805(e). Through FY2022, the Secretary concerned is required to adjust the dollar limitations specified in 10 U.S.C. §2805 for unspecified minor military construction projects inside the United States to reflect the area construction cost index for military construction projects (not to exceed $10 million). A construction cost index is an indicator of the average cost over time of representative goods and services related to construction cost variations. It serves as a reflection of the inflationary or deflationary changes of a specific sector of construction industry. 17 See 10 U.S.C. §2805(c). O&M appropriations are provided through the annual defense appropriations bill, rather than the MILCON-VA Appropriations Bill. 18 10 U.S.C. §2801 defines the term appropriate committees of Congress as the “congressional defense committees and, with respect to any project to be carried out by, or for the use of, an intelligence component of the Department of Defense, the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate.” 10 U.S.C. §101 defines the term congressional defense committees as “the Committee on Armed Services and the Committee on Appropriations of the Senate; and the Committee on Armed Services and the Committee on Appropriations of the House of Representatives.” 16 Congressional Research Service 4 Military Construction: Authorities, Process, and Frequently Asked Questions appropriations, to fund certain unspecified minor construction projects intended to enhance DOD laboratories.19 This authority also requires the Secretary concerned to adjust the dollar limitations specified under 10 U.S.C. §2805 for unspecified minor military construction projects inside the United States, to reflect the area construction cost index for military construction projects for MILCON projects published by DOD during the prior fiscal year for the location of the project (not to exceed $10 million). This requirement is in effect through fiscal year 2022.

20 Architectural, Engineering, and Design Services (10 U.S.C. §2807) Section 2807 of Title 10 allows the Secretary concerned to obtain architectural and engineering services, and to initiate construction design, in connection with MILCON projects, family housing, and projects undertaken in connection with 10 U.S.C. §2854, Restoration or replacement of damaged or destroyed facilities that are not otherwise authorized by law. If the required services are estimated to exceed $1 million, congressional notification is required and the Secretary concerned must wait 14 days before obligating funding for such purposes. These services may be paid for using MILCON or Family Housing appropriations for planning and design.21 Repair of Facilities (10 U.S.C. §2811) Section 2811 of Title 10 Repair of Facilities (10 U.S.C. §2811)

Section 2811 allows the Secretary concerned to carry out certain “repair projects” on facilities using O&M appropriations.¹⁵ The statute The statutes defines a "repair project" as a project "“(1) to restore a real property facility, system, or component to such a condition that it may effectively be used for its designated functional purpose; or (2) to convert a real property facility, system, or component to a new functional purpose without increasing its external dimensions."” There are no budgetary limitations or caps on thethis authority, but projects costing more than $7.5 million must be approved in advance by the Secretary concerned, and Congress must be notified of the decision to carry out the project. The notification must include a cost estimate and a justification for the project. If the cost estimate exceeds 75% percent of the estimated cost of a MILCON project to replace the facility, 10 U.S.C. §2811 also requires the congressional notification to include an explanation of the reasonsas to why replacement of the facility is not in the best interest of the government. This authority also prohibits the construction of new facilities or additions to existing facilities. Emergency Authorities22 The following DOD authorities are intended to be exercised in the event of a national emergency, declaration of war, or other acute circumstance where the Secretary concerned determines a MILCON project is immediately required to meet national security needs, or where waiting for 10 U.S.C. §2805 defines the term laboratory to include “a research, engineering, and development center” and “a test and evaluation activity.” 20 For more information on unspecified minor military construction, see Department of Defense, Financial Management Regulation 7000.14-R, Volume 3, Chapter 17, p. 17-15, June 2019, at https://comptroller.defense.gov/Portals/45/documents/fmr/current/03/03_17.pdf. 21 For more information on MILCON Planning and Design, see Department of Defense, Financial Management Regulation 7000.14-R, Volume 3, Chapter 17, p. 17-11, June 2019, at https://comptroller.defense.gov/Portals/45/documents/fmr/current/03/03_17.pdf. 22 These authorities are not included in the normal planning, programming, and budgeting process. 19 Congressional Research Service 5 Military Construction: Authorities, Process, and Frequently Asked Questions the next MILCON authorization would be “inconsistent with national security or national interest.”23 Emergency Construction (10 U.S.C. §2803) Under 10 U.S.C. §2803, the Secretary concerned may carry out a MILCON project not otherwise authorized in law, if he or she determines that (1) it is vital to national security or to the protection of health, safety, or the quality of the environment, and (2) the project is of such urgency that it cannot wait for the next Military Construction Authorization Act (i.e., the National Defense Authorization Act, or NDAA).24 When the Secretary concerned initiates a project under this section, the Secretary is required to report it in writing to the appropriate congressional committees (armed services and appropriations). This includes the justification for, and estimated cost of, the project, the reason why Section 2803 is being invoked, and the source of the funds being used. Accordingly, when a decision is made to request approval for an emergency construction project, DOD submits a notification and request for the reprogramming of MILCON funds in accordance with the aforementioned statutory provisions.25 There is a limit of $50 million that can be obligated under this authority during any given fiscal year. Additionally, a project carried out under this authority must be funded within the total amount of MILCON why replacement of the facility is not in the best interest of the government.

A Secretary of a military department may initiate a construction project if he or she determines that (1) it is vital to national security or to the protection of health, safety, or the quality of the environment and (2), the project is of such urgency that it cannot wait for statutory authorization. When the Secretary concerned initiates such a project, Section 2803 requires that he report it in writing to the appropriate congressional committees (armed services and appropriations), including the justification for and estimated cost of the project, the reason why Section 2803 is being invoked, and the source of the funds being used. There is a cap of $50 million on the amount of funding that can be obligated under this authority during any given fiscal year. The project must be funded within the total amount of military construction appropriations that have not been obligated.¹⁷appropriations that have not been obligated.26 There is also a mandatory waiting period before the emergency construction project may begin.

Construction Authority in the Event of a Declaration of War or National of five days, beginning on the date the appropriate committees of Congress are notified, before the emergency construction project may begin. Contingency Construction (10 U.S.C. §2804)27 Section 2804 of Title 10 permits the Secretary of Defense (or the Secretary of a MILDEP if authorized by the Secretary of Defense) to use appropriated MILCON funds to carry out a MILCON project without prior congressional authorization, if the Secretary determines that waiting to include it in the next MILCON Authorization Act would be “inconsistent with national security or national interest.” Section 2804 requires the Secretary to submit a report in writing to 23 10 U.S.C. §2804. There is no provision in Title 10 that explicitly grants this authority to the reserve components of the armed forces (as they are defined in Chapter 1003 of Title 10), and the DOD does not consider emergency construction authority as applicable to the reserve components. The reserve component’s real property acquisition authorities are provided in Chapter 1803 of Title 10. See Department of Defense, Financial Management Regulation 7000.14-R, Volume 3, Chapter 17, p. 17-19, June 2019, at https://comptroller.defense.gov/Portals/45/documents/fmr/current/03/03_17.pdf. 25 For more information on DOD regulations pertaining to emergency construction authority, see Department of Defense, Financial Management Regulation 7000.14-R, Volume 3, Chapter 17, p. 17-18, June 2019, at https://comptroller.defense.gov/Portals/45/documents/fmr/current/03/03_17.pdf. 26 Written into MILCON-VA appropriations acts is language allowing for the obligation (spending) of funds over a number of years. Any funding left over in the various MILCON accounts at the end of a fiscal year is carried over and can be obligated in subsequent years. 24 2808 of the FY2004 National Defense Authorization Act (P.L. 113-66) temporarily authorized the Secretary of Defense as much as $200 million in O&M funding “carry out a construction project outside the United States necessary to meet “urgent military requirements of a temporary nature in support of a declaration of war, a declaration by the President of a national emergency ... or a contingency operation.” This provision, often referred to as “Section 2808 authority” (not to be confused with the permanent 10 U.S.C. §2808 - Construction Authority in the Event of a Declaration of War or National Emergency) has been renewed for each subsequent year, though the cap on available funds and the areas to which it may be applied have frequently been amended. Section 2807 of the FY2019 National Defense Authorization Act (P.L. 115-232) extended the authority through December 31, 2020, and set a limit of $50 million. 27 Section Congressional Research Service 6 Military Construction: Authorities, Process, and Frequently Asked Questions the appropriate congressional committees justifying the project and the invocation of this authority and including an estimate of the cost of the project. Funds for contingency construction are held in the DOD’s Contingency Construction Account. When a decision is made to request approval for a construction project under this authority, DOD regulation requires submission of a congressional notification and request for the reprogramming of MILCON funds in accordance with the provisions of the statute.28 Yet, according to DOD Directive 4270.5, reprogramming is not necessary for projects under Section 2804.29 Further, although DOD may initiate a MILCON project under this authority without specific congressional authorization, according to DOD’s Financial Management Regulation (7000.14-R), “Actual construction may not commence prior to the receipt of appropriate DOD and congressional approval.”30 Construction Authority in the Event of a Declaration of War or National Emergency (10 U.S.C. §2808) Emergency (10 U.S.C. §2808)

In the event of a declaration of war or national emergency requiring the use of the Armed Forces, Section declaration of a national emergency by the President of the United States that requires the use of the armed forces, 10 U.S.C. §2808 permits the Secretary of Defense to initiate, or to authorize the military secretaries to carry out military construction Secretaries of the MILDEPs to carry out, MILCON projects not yet authorized by statute.31 Any unobligated military constructionMILCON or family housing appropriations may be used for construction projects that are "“necessary to support such use of the armed forces."” According to the statute, this authority may be exercised “without regard to any other provision of law.” The Secretary of Defense must report his decision to use Section 2808 authority to Congress, along with the projects' estimated coststo Congress the decision to use this authority, along with the estimated costs of the projects, including any associated real estate transactions. The authority terminates at the end of the war or national emergency.

Planning, Programming, and Budgeting

For more information on the recent use of 10 U.S.C. §2808 authority, see CRS Insight IN11017, Military Construction Funding in the Event of a National Emergency, by Michael J. Vassalotti and Brendan W. McGarry. For more information on the DOD’s historical and current process for exercising this authority, see CRS Report R45937, Military Funding for Southwest Border Barriers, by Christopher T. Mann. Planning, Programming, and Budgeting32 The need for a particular construction project may be part of a top-down initiative, – such as the creation of new missions for a given military installation or the movement of units or offices between installations, or it may be the result of needed modernization or replacement of existing buildings. In either case, the process begins with a facility requirements evaluation by the installation's engineering staff.

Installation engineers evaluate the future need for facilities such as training classrooms, firing ranges, barracks, and family housing, and 28 Department of Defense, Financial Management Regulation 7000.14-R, Volume 3, Chapter 17, p. 17-20, June 2019, at https://comptroller.defense.gov/Portals/45/documents/fmr/current/03/03_17.pdf. 29 DOD Directive 4270.5, Military Construction, at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/427005p.pdf?ver=2018-11-08-080607-280. 30 For more information on Contingency Construction, see Department of Defense, Financial Management Regulation 7000.14-R, Volume 3, Chapter 17, p. 17-19 and 17-20, June 2019, at https://comptroller.defense.gov/Portals/45/documents/fmr/current/03/03_17.pdf. 31 10 U.S.C. §2808 states that a declaration of a national emergency must be in accordance with the National Emergencies Act of 1976 (50 U.S.C. §1601 et seq.). The National Emergencies Act does not define the term “national emergency.” See CRS Legal Sidebar LSB10267, Definition of National Emergency under the National Emergencies Act, by Jennifer K. Elsea. 32 This section intentionally condenses the DOD’s lengthy and complex process for MILCON design and planning, programming, and budgeting. An expanded and more detailed description of the MILCON process can be found within the RAND report, Obtaining Life-Cycle Cost-Effective Facilities in the Department of Defense, at https://www.rand.org/pubs/research_reports/RR169.html. See also CRS In Focus IF10429, Defense Primer: Planning, Programming, Budgeting and Execution (PPBE) Process, by Brendan W. McGarry and Heidi M. Peters. Congressional Research Service 7 Military Construction: Authorities, Process, and Frequently Asked Questions between installations – or it may be the result of needed modernization or replacement of existing facilities determined at the local level (i.e., by installation stakeholders). In either case, the process begins with a preliminary project justification and facility requirements analysis by the installation’s public works department, which consists of engineers, community planners, environmental specialists, and other public works professionals, subject to the direction of the uniformed installation commander.33 Installation engineers and other public works staff evaluate the proposed need for new or improved facilities such as training classrooms, firing ranges, barracks, and family housing, and compare them to the facilities that already exist.34 Thecompare them to the facilities that already exist.¹⁸ If they discover or anticipate a shortfall, the engineers will weigh the costs and time required to rehabilitate, or alter structures, on site against the cost and time required to replace them. As discussed, funding for additions or alterations to existing buildings and the construction of new buildings where costs exceed $2 million is provided through annual military construction appropriations. Facility repair at a military base is generally supported through the O&M accounts in the annual defense appropriation bill.¹⁹

After engineers determine that a specific military construction project is needed, the prioritization of prospective military construction generally begins at a conference of the installation' them. Engineers and other members of the installation’s planning team then make a preliminary determination of whether or not renovation of an existing facility, new construction, or leasing is more appropriate to satisfy the proposed need.35 An initial project evaluation is followed by a more comprehensive evaluation once a determined need generates a formal request for MILCON.36 The prioritization of prospective MILCON at an installation generally begins with meetings between the installation’s engineers and representatives of all major resident organizations and other installation tenants. This group is commonly referred to as a Facilities Utilization Board. . The result of these conferencesmeetings―a prioritized list of construction needs― is presented to the installation's senior militarysenior installation commander, who then accepts or adjusts the priorities to create a final list of proposed projects for service-level review. Within these prioritized submissions, installation engineers include information about individual MILCON projectsprojects for submission up the chain of command.

The substance of that submission can be seen in a Department of Defense Form 1391 (DD Form 1391), Military Construction Project Data Sheet (see an example DD 1391 at Appendix C), created for each proposed project by the installation engineers. The DD 1391(see Appendix C for an example DD Form 1391). The DD Form 1391 for a particular project includes a cost estimate, a description of the proposed construction, the specific requirement for the project (e.g., a change in mission or deterioration of facilities already in use), the current facility situation at the installation, the impact on installation mission if the project is not approved, and any other needed justification information.37 The DD 1391 form will Form 1391 will accompany the construction request throughoutthrough the rest of the executive and legislative process. The term “public works department” is used as a general descriptor to include each of the military services’ public works organizations that are responsible for military installation real property development. A formal title for this type of organization within the Army is an installation’s Directorate of Public Works, or DPW. See https://home.army.mil/irwin/index.php/about/Garrison/directorate-public-works. 34 Installation engineers are the principal officers responsible for providing authoritative analysis and strategic program recommendations for MILCON needs and priorities. Installation engineers may be referred to in various titles according to each Military Service: the Post Engineer in the Army, Base Civil Engineer (BCE) in the Air Force and Air National Guard, the Resident/Regional Officer in Charge of Construction (ROICC) in the Navy and Marine Corps, and the Construction and Facilities Management Officer (CFMO) in the Army National Guard. 35 Constantine Samaras, et al., Development, Construction, and Operating Process and Barriers to Life-Cycle CostEffectiveness, RAND Corporation, 2013, Ch. 2 p. 7. 36 Ibid. As noted previously, funding for additions or alterations to existing buildings and the construction of new buildings, where costs exceed $2 million, is generally provided through annual MILCON appropriations. Facility repair at a military base is generally supported through the O&M accounts in the annual defense appropriation bill. The O&M sub-accounts associated with this type of maintenance work are generally referred to as Facilities Sustainment, Restoration, and Modernization, or FSRM. 37 DD Form 1391s are associated with several other required DOD forms and their corresponding processes that help to populate, or are informed by, the DD Form 1391. For example, the ENG FORM 3086 is a tool that cost engineers use to estimate project costs for the DD Form 1391. 33 Congressional Research Service 8 Military Construction: Authorities, Process, and Frequently Asked Questions Vetting and Prioritization within DOD Once the prioritized lists of MILCON projects leave the installation commanders’ offices, they follow different paths depending on the DOD organization responsible for managing a given military installation. Figure 1 depicts these paths. the executive and legislative process.

Vetting and Prioritization Within the Military Services

Once they leave the installation commanders' offices, these prioritized lists follow different paths, depending on the military component responsible for managing any given installation. These paths are graphically depicted in Figure 1.

Department of the Army

Department of the Army The Secretary of the Army reorganized Army propertyinstallations management in 2002 by creating the Installation Management Agency (IMA) and transferringassigning to it the responsibility for maintaining the physical infrastructure of all Army posts and depots. This change was followed by a further reorganization in 2006Further consolidation and reorganization followed in 2006, when the IMA was folded into athe new Installation Management Command (IMCOM), whose commanding general reportsreported directly to the Army Chief of Staff.

In March 2019, IMCOM became a major subordinate command to the Army Materiel Command (AMC).38 Today, IMCOM is the Army’s single agency responsible for worldwide installation management. Prior to November 2016, IMCOM was divided into four regional directorates— – Central, Atlantic, Pacific, and Europe. Construction projects from Army posts were forwarded to the appropriate IMCOM region, where the submissions from all the garrison commanders at installations within its jurisdiction were reviewed and prioritized into a single consolidated list for the region. On November 1, 2016, the Department of the Army realigned IMCOM's ’s two domestic regions, Atlantic and Central,– Atlantic Region and Central Region – from a regional to a mission-oriented organization. These two regions were replaced by three functionally -aligned directorates which were colocated with Forces Command (co-located with three major Army commands: IMCOM Readiness), Training and Doctrine Command (IMCOM Training), and Army Material Command (IMCOM Sustainment).²¹ The two overseas directorates (IMCOM Europe and IMCOM Pacific) remained.

, which is co-located with Army Forces Command (FORSCOM); IMCOM Training, which is co-located with Army Training and Doctrine Command (TRADOC); and IMCOM Sustainment, which is co-located with AMC.39 The two overseas directorates–IMCOM Europe and IMCOM Pacific–remained regional and are located in Sembach Kaserne, Germany and Fort Shafter, Hawaii, respectively. The prioritized lists developed by the five IMCOM directorates are submitted to Headquarters, IMCOM, located at Ft.Fort Sam Houston in San Antonio, Texas. The headquarters consolidates, considers, and reprioritizesprioritizes the project lists. It then submits a consolidatedan IMCOM-approved list for further review by the Army'Deputy Chief of Staff (DCS), G9 (formerly the Army’s Assistant Chief of Staff for Installation Management, or (ACSIM), the service'’s senior officer responsible for setting installations-related policy. The Deputy and administering installation resource programming.40 The Deputy Chief of Staff, G-8, then assesses and integrates the installations-related resourcing requirements into the overall budget of the Army.

At this point, responsibility for managing the Army'’s construction requests shift to the civilian Army Secretariat, (the staff supporting the Secretary of the Army and his assistants). In the case of military construction MILCON, responsibility for further review and consideration falls to the Assistant Secretary of the Army for Installations, Energy, and Environment (ASA(IE&E)). Once approved by the Assistant Secretary, the Army'’s proposed construction projects are ready to be sent to the Office Susan A. Merkner, “IMCOM transitions to Army Materiel Command,” The Real McCoy, March 22, 2019, https://static.dvidshub.net/media/pubs/pdf_46766.pdf. 39 U.S. Army, “IMCOM transforms regions into new directorates,” Public Works Digest, January 24, 2017, at https://www.army.mil/article/181181/imcom_transforms_regions_into_new_directorates. 40 See “About Us” at the Deputy Chief of Staff, G-9 (Installations) website at https://www.acsim.army.mil/about.html. 38 Congressional Research Service 9 Military Construction: Authorities, Process, and Frequently Asked Questions of the Secretary of Defense (OSD) for consolidation with those of the other services and defense agencies into a prioritized DOD master list.

Figure 1. Military Construction Process

Source: DOD information, CRS graphic.

Department of the Air Force²²

Force41 The Air Force Installation and Mission Support Center (AFIMSC) is that department's near-equivalent to the Army's IMCOM. The AFIMSC was established in August 2014, a subordinate unit to the Air Force Materiel Command (AFMC), was activated in April 2015 to standardize construction and civil engineering support across all Air Force installations.42 The center provides program management, resourcing, and support activities previously supplied by each of the 10 major commands, two direct reporting units, and multiple field operating agencies. In practice, the Air Force's major operational commands, such as Air Combat Command or Air Mobility Command, conduct day-to-day management of Air Force installations.

, through its headquarters staff, detachments, and Primary Subordinate Units (PSUs), manages and oversees the Air Force’s PPBE processes and deliverables for Installation and Mission Support capabilities previously accomplished by the Air Force’s Major Commands (MAJCOMs) and direct reporting units.43 This includes MILCON at Air Force installations. In practice, the Air Force MAJCOMs conduct day-to-day management of Air Force installations through their base commanders (generally the Wing Commander at an air base). However, these commanders rely upon AFIMSC to execute their MILCON projects. AFIMSC houses the Air Force Civil Engineer Center (AFCEC), one of its PSUs that provides installation engineering services to Air Force installations, and is responsible for executing the Air Force MILCON program.44 Though not technically a DODdesignated construction agent (an approved DOD activity assigned the design or construction execution responsibilities associated with a service’s MILCON program45), AFCEC executes Design Manager/Construction Manager (DM/CM) roles and responsibilities similar to those of a construction agent.46 After AFIMSC receives the prioritized project lists from installation commanders, AFIMSC validates and consolidates projects and works to support the development of an Integrated Priority List (IPL), including working through the Air Force Corporate Structure (AFCS), and with the Facility Management Division of the Air Staff (AF/A4CF). The AFCS is a deliberative body that makes recommendations on resourcing and investment to the Secretary of the Air Force.47 AF/A4CF reviews MILCON programs and integrates Total Force (Active Air Force, Air National Guard, Air Force Reserve) MILCON projects into a single IPL based on a pre-approved 41For more detailed information on how the Air Force manages its MILCON program, see U.S. Air Force, Program Management Plan for Air Force MILCON Execution, AFIMSC/AFCEC, 25 September 2017, at https://www.wbdg.org/FFC/AF/POLICY/PgMP_MILCON_HAF_AFCEC_AFIMSC_Final.pdf. 42 See AFIMSC’s website for additional information https://www.afimsc.af.mil/About-Us/FactSheets/Display/Article/559864/af-installation-mission-support-center/. 43 U.S. Air Force, Program Management Plan for Air Force MILCON Execution, AFIMSC/AFCEC, 25 September 2017, pp.4-5, https://www.wbdg.org/FFC/AF/POLICY/PgMP_MILCON_HAF_AFCEC_AFIMSC_Final.pdf. 44 Ibid, p. 5. 45 See Department of Defense, Directive 4270.5, Military Construction, at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/427005p.pdf?ver=2018-11-08-080607-280. 46 The MILDEP’s Construction Agents according to DOD Directive 4270.5 are the Naval Facilities Engineering Command (NAVFAC) for the Navy and Marine Corps, and the Army Corps of Engineers (USACE) for the Army. Historically, either NAVFAC or USACE have executed design and construction for the Air Force MILCON program, but more recently AFCEC has taken on these roles and responsibilities and is designated by the Air Force as its Design Manager/Construction Manager (DM/CM). See U.S. Air Force, Instruction (AFI) 32-1023, Designing and Constructing Military Construction Projects, at https://static.e-publishing.af.mil/production/1/af_a4/publication/afi321023/afi32-1023.pdf. 47 The Air Force Corporate Structure is a formal body consisting of civilian and military personnel from the Air Staff or Secretariat, Core Function Lead representatives and the MAJCOMs. It is established under the Air Force Council, which is chaired by the Vice Chief of Staff of the Air Force and the Under Secretary of the Air Force. See Headquarters, U.S. Air Force, Planning, Programming, Budgeting, and Execution System Training Program Reference Manual, pp. 43-46, at http://afacpo.com/AQDocs/PPBE.pdf. Congressional Research Service 10 Military Construction: Authorities, Process, and Frequently Asked Questions MILCON Model and presents the MILCON program to the AFCS for approval.48 Once approved by the Assistant Secretary of the Air Force for Installations, Energy, and Environment (SAF/IE) through the Deputy Assistant Secretary of the Air Force for Environment, Safety and Infrastructure (SAF/IEE), the Deputy Assistant Secretary of the Air Force for Budget (SAF/FMB) finalizes the Air Force MILCON budget and submits the approved list of MILCON projects to OSD. Department of the Navy Department of the Navy

Like the Army, the Navy centrally manages its facilities. The Naval Facilities Engineering Command (NAVFAC) plans, builds, and maintains facilities, and delivers environmental, utilities, and other base services. There are nine Facilities Engineering Commands reporting through one of two NAVFAC regional NAVFAC comprises two regional commands―NAVFAC Atlantic in Norfolk, VAVirginia, and NAVFAC Pacific in Pearl Harbor, HI.²⁴ Each Navy shore installation assigned to one of the Facilities Engineering Commands is provided a Hawaii―to which a total of nine subordinate Facilities Engineering Commands (FECs) report. 49 Each Navy shore installation (i.e., Navy base) is assigned to one of the FECs. At each base, a Resident Officer in Charge of Construction (ROICC). This ROICC overseas MILCON projects for the base and is responsible for developing the necessary DD 1391s.

Form 1391s. The NAVFAC headquarters staff reviews and prioritizes the submitted construction projects, forwarding the resulting list to Navy Installations Command (formally “Commander, Navy Installations Command,” or CNIC), located at the Washington Navy Yard in the District of Columbia.50 CNICColumbia.²⁵ Navy Installations Command consolidates, reviews, and reprioritizes the projects before submitting them to the Chief of Naval Operations (CNO) through the Deputy Chief of Naval Operations (Fleet Readiness & Logistics, OPNAV N4) and more specifically the Director, Shore Readiness Division (OPNAV N46). Upon evaluation and approval, the CNO'’s staff passes the list to the Assistant Secretary of the Navy for Energy, Installations, and Environment (ASN(EI&E)) for for submission to OSD.

Marine Corps

The Marine Corps Marine Corps The Marine Corps, as a component of the Navy, has no installation engineering staff; it relies on NAVFAC and the Navy'’s ROICCs to plan and administer construction on its installations. Nevertheless, the Marines do channel their construction requests through their own chain of command for requirements screening and project prioritization.

After installation construction requirements are determined and the requisite DD Form 1391s are created and prioritized, they are forwarded to the appropriate regional subordinate command of Marine Corps Installations Command headquarters(MCICOM) for screening and consolidation.²⁶51 There, the proposed military construction projects are reviewed, reprioritized, and forwarded to their respective Fleet Marine 48 Additional information on Air Force MILCON program and project roles and responsibilities can be found in U.S. Air Force, Instruction (AFI) 32-1021, Planning and Programming Military Construction (MILCON) Projects, at https://static.e-publishing.af.mil/production/1/af_a4/publication/afi32-1021/afi32-1021.pdf. 49 For a list of engineering commands by region see https://www.navfac.navy.mil/about_us.html. 50 CNIC provides oversight on all shore installation management, exercises authority as the Budget Submitting Office for installation support, and acts as the Navy point of contact for program execution oversight and installation policy. 51 MCICOM is the single authority for all Marine Corps installations matters. It exercises command and control of regional installation commands, establishes policy, exercises oversight and prioritizes resources in order to optimize installation support to the operating forces, tenant commands, and Marine families. There are four regional subordinate commands under Marine Corps Installations Command (MCICOM): the National Capital Region/Marine Corps Base Quantico (MCINCR), Pacific (MCIPAC), East (MCIEAST) and West (MCIWEST); each is responsible for the major Marine bases and air stations within their respective geographic areas. See https://www.mcicom.marines.mil/Portals/57/G1%20Docs/2015%20MCICOM%20Welcome%20Package%20V2.pdf. Congressional Research Service 11 Military Construction: Authorities, Process, and Frequently Asked Questions Force (FMF) headquarters.52Force (FMF) headquarters.²⁷ After the FMF headquarters review, military constructionMILCON projects are submitted to Headquarters, Marine Corps, in Washington, DC, where a final prioritized list is compiled and submitted to the Assistant Secretary of the Navy for Energy, Installations and Environment for presentation to OSD.

National Guard

to MCICOM headquarters and other oversight offices co-located within Headquarters, Marine Corps Installations and Logistics (HQMC/I&L), in Washington, DC. There, a final prioritized list is compiled and submitted to the ASN(EI&E) for presentation to OSD. National Guard The National Guard (Army and Air) is a state-based reserve component of the Armed Forces.²⁸ armed forces.53 Unless the National Guard is federalized (i.e., called to active duty according to statutory provision), each state’, each state's National Guard is its own distinct military organization, with the governor as its commander in chief and theThe Adjutant General (TAG), or TAG, as its senior military officer.²⁹54 Each National Guard is a joint organization under the TAG, but its Army however, Army National Guard (ARNG) and Air National Guard construction(ANG) MILCON requirements are handled somewhat differently.

Army National Guard

Guard55 Within thea state's Army National Guard (ARNG) organization, Construction and Facilities Management Officers (CFMOs) develop the Master Planning—Long Range Construction Plan (LRCP), a project priority list of the state's requirements for military construction. The CFMOs are the installation engineers of the ARNG, who act as the principal advisors to the Adjutants General on all Army Guard military construction projects. CFMOs operate under general guidance issued by the TAG to assess need and program military construction projects, submitting them to the TAG for prioritization and approval. Upon review completion, the TAG sends the project list to the National Guard Bureau (NGB), an agency that acts as the liaison between the state National Guards and DOD.

The Department of the Army limits the number of construction projects a state may submit each year. Therefore, the TAG must carefully consider the state's priorities before forwarding projects to the NGB. The NGB Army staff, in turn, reviews the ARNG projects from all jurisdictions and incorporates those with the highest priority into an Infrastructure Requirements Plan (IRP). The IRP serves as the prioritized list of Guard military construction candidates’s joint National Guard headquarters organization (sometimes called a Military Department or Department of Military Affairs), the Army section of the headquarters staff includes a Construction and Facilities Management Officer (CFMO) who administers the state’s Military Construction Army National Guard (MCNG) program. CFMOs are the installation engineers of the ARNG and are the principal advisors to the TAG regarding all real property, facilities, O&M, construction, and environmental management programs.56 CFMOs conduct Master Planning and develop a Long Range Construction Plan (LRCP); a prioritized list of the state’s requirements for MILCON CFMOs operate under the TAG’s general guidance to assess state facility requirements and program MILCON projects, submitting them to the TAG for prioritization and approval. CFMOs also prepare DD Form 1391s for each MILCON project. Following the CFMO’s review of the projects and submission to the TAG for approval, the TAG sends a final project list (which includes the DD Form 1391s) to the National Guard Bureau (NGB), an agency that acts as the liaison between the states’ National Guard headquarters organizations and the Departments of the Army and Air Force. ARNG staff within NGB (such as those in the Installations Division, or ARNG-ILI), in turn, review the submitted MILCON projects from all jurisdictions and incorporate those with the highest priority into an Infrastructure Requirements Plan (IRP). The IRP serves as the prioritized 52 There are two FMFs—Atlantic (FMFLANT) and Pacific (FMFPAC)—commanding the deploying Marine Expeditionary Forces. FMFLANT is headquartered at Naval Station Norfolk, Virginia, while FMFPAC is headquartered at Camp H.M. Smith, Hawaii. 53 For background information on the Reserve Forces, see CRS In Focus IF10540, Defense Primer: Reserve Forces, by Lawrence Kapp, at https://crsreports.congress.gov/product/pdf/IF/IF10540. 54 With the exception of the District of Colombia, territories (including Guam, U.S. Virgin Islands, and Puerto Rico) also have elected governors. For more information on federalization of the National Guard and other Reserve Forces, see CRS In Focus IF10540, Defense Primer: Reserve Forces, by Lawrence Kapp. 55 For more detailed information on Army National Guard MILCON program development and execution, see National Guard Regulation 415-5, Construction, Army National Guard Military Construction Program Development and Execution, March 6, 2015, at https://www.ngbpdc.ngb.army.mil/Portals/27/Publications/ngr/ngr%204155.pdf?ver=2018-09-07-082540-720. 56 Sometimes the CFMO is represented by an office within a state military department. In these cases the term CFMO may be understood as “Construction and Facilities Management Office” rather than officer. However, per National Guard Regulation 415-5, responsibility for ARNG MILCON lies with the state-designated officers. See Texas Military Department CFMO example at https://tmd.texas.gov/construction-and-facilities-management-office. Congressional Research Service 12 Military Construction: Authorities, Process, and Frequently Asked Questions list of Army Guard MILCON projects for federal funding. for federal funding.

The Director of the ARNG then provides the prioritized ARNG project list to the Army Staff in the Pentagon, where it is reviewed by the Assistant Chief of Staff for Installation Management (ACSIM)for review by the DCS, G-9. From this point, the ARNG project list follows the same review and approval process as the rest of the Army. Air National Guard57 as the Army list.

The Base Civil Engineers (BCEs) for each state's Air National Guard (ANG) installations initiate military construction projects in a process resembling that of their ARNG colleagues. The state's Air Staff compiles ’s ANG installations initiate MILCON projects through a process similar to that of the ARNG. BCEs produce DD Form 1391s for each MILCON project. The Air Staff within the state’s joint National Guard headquarters organization, compiles and prioritizes the projects according to the TAG'’s general guidance. After TAG approval, the state's ANG highest-priority state’s highest priority ANG projects are sent to theANG Headquarters Air Staff within the NGB for consolidation and reprioritization. The NGBANG Air Staff combines and refines the list, and the Director of the ANG provides highest- priority projects to the Headquarters, Air Force (HAF) staff in the Pentagon. From that point, itthe project list follows the same review and approval process as the Air Force list.

The Chief of the National Guard Bureau works with OSD throughout the programming phase to ensure NGB priorities are given full consideration.

Appropriations, Authorizations, and Enactment

Legislation to appropriate funding for military construction originates as a bill in the Military Construction, Veterans Affairs, and Related Agencies subcommittees within the Committees on Appropriations for both the House and the Senate.³⁰ As is the case with the annual National Defense Authorization Act (NDAA), which authorizes these appropriations, the committee reports accompanying the appropriations bills may provide useful information in addition to that found 57 For more detailed information on Air National Guard MILCON program policies, responsibilities, and execution, see Air National Guard Instruction 32-1023, Criteria and Standards for Air National Guard Design and Construction, January 21, 2015, at https://www.wbdg.org/FFC/ANG/ANGI/ANGI_32-1023.pdf. Congressional Research Service 13 Figure 1. Military Construction Process Source: DOD information, CRS graphics. CRS-14 Military Construction: Authorities, Process, and Frequently Asked Questions Office of Management and Budget Review The joint review of the DOD budget by OMB and OSD generally occurs between September and December, and focuses on the administration’s priorities, as well as such general areas as “program phasing and pricing, compliance with DOD funding policies, and efficient execution of funds, based on performance metrics.”58 This review includes MILCON programs and the review of DD Form 1391 submissions for projects proposed by OSD. The highest priority projects that fit within the budgetary guidance provided by the Office of Management and Budget (OMB) will be included in the President's request. The approved projects assigned a lower priority are slated for funding in future years and are typically included in the Future Years Defense Program (FYDP), which is a catalogue that summarizes the forces, resources, and programs associated with DOD operations over a five-year period.59 Therefore, some MILCON projects may survive the screening process only to be placed in the budgeting queue for a future year’s submission. Conversely, because budget levels fluctuate and the entire construction list is reviewed annually, it is also possible a MILCON project’s priority may diminish in a later year. Authorizations, Appropriations, and Enactment60 The annual NDAA, which originates as bills in the House and Senate armed services committees, authorizes MILCON and provides any policy guidance, as in all other DOD policy issues. Legislation to appropriate funding (i.e., provide the budget authority to DOD) for MILCON originates as a bill in the Military Construction, Veterans Affairs, and Related Agencies subcommittees within the Committees on Appropriations for both the House and the Senate.61 Committee reports accompanying the appropriations bills may provide useful information in addition to what is included in the bills themselves. See Figure 2.

. While the committees and subcommittees exercise jurisdiction over the legislation required to set policy, authorize actions, and provide the budget authority DOD needs, they also usually, they also typically provide opportunities for individual Members of Congress not assigned to the committees of jurisdiction to provide input regarding specific constructionMILCON projects. During the period when legislation is being drafted, the committees may also issue guidance tofor Members wishing to submit input to the committee inwhen considering military constructionMILCON matters. The guidance might suggest additional documentation that could prove helpfuluseful to the committee in its deliberations and deliberations, or may also set a deadline for submission of such information. Often that deadline is set for late March, when the subcommittee staffs begin to prepare for markup of the necessary legislation.

58 RAND Corporation, Obtaining Life-Cycle Cost-Effective Facilities in the Department of Defense, 2013, p. 14, at https://www.rand.org/pubs/research_reports/RR169.html. 59 10 U.S.C. §221 requires that the Secretary of Defense submit, at about the same time as the President’s annual budget request, a “future-years defense program … reflecting the estimated expenditures and proposed appropriations included in that budget. Any such future-years defense program shall cover the fiscal year with respect to which the budget is submitted and at least the four succeeding fiscal years.” DOD develops its FYDP according to policies and procedures outlined in Office of the Under Secretary of Defense (Comptroller), Department of Defense, Directive 7045.14, The Planning, Programming, Budgeting, and Execution Process (PPBE) Process, January 25, 2013 (Incorporating Change 1, August 29, 2017). See: CRS In Focus IF10429, Defense Primer: Planning, Programming, Budgeting and Execution (PPBE) Process, by Brendan W. McGarry and Heidi M. Peters. 60 For more information on the MILCON appropriation and obligation process, see GAO, Defense Infrastructure: Action Needed to Increase the Reliability of Construction Cost Estimates, GAO-18-101, March 2018, at https://www.gao.gov/assets/700/690892.pdf. 61 For general information on the federal budgeting, appropriations, and authorization processes, see CRS Report 98721, Introduction to the Federal Budget Process, coordinated by James V. Saturno, and CRS Report RS20371, Overview of the Authorization-Appropriations Process, by Bill Heniff Jr. Congressional Research Service 15 Military Construction: Authorities, Process, and Frequently Asked Questions is set for late March, when the subcommittee staffs begin to prepare for markup of the necessary legislation. Figure 2. Legislative Process / Congressional Operations Figure 2. Legislative Process / Congressional Operations

Source: House and Senate committee websites, CRS Report RS21363, Legislative Procedure in Congress: Basic Sources and Process Resources for Congressional Staff, by [author name scrubbed] and [author name scrubbed], CRS graphic.

Execution: From Paper to Bricks and Mortar

With, by Jennifer E. Manning and Maura Mullins, CRS graphics. MILCON Execution After having received congressional authorization and an appropriation, the responsibility for managing military construction projects typically falls to either Naval Facilities Engineering Command (NAVFAC) for Navy and Marine Corps projects, or the Army Corps of Engineers (ACE) for Army and Air Force projects.³¹ Army and Air National Guard headquarters bureaus manage their respective projects.

Solicitation of Bids

Portions of Title 40 of the United States Code (§1101 et seq.) require that federal building appropriations, the responsibility for executing and managing MILCON projects typically falls to one of the two MILDEP construction agents or to the service’s designated DM/CM.62 However, ARNG and ANG headquarters bureaus manage their respective MILCON projects separately. These service-designated construction agents/managers typically hire one or more general contractors to execute construction, where the concerned military service is not able to perform the design or construction work themselves. Construction agent or DM/CM field engineering offices and associated contracting offices are responsible for preparing, advertising, evaluating, and awarding design and construction contracts. These contracts are awarded through a specific Request for Proposal (RFP) process. 63 62 While this division of responsibility usually holds for construction within the United States, overseas construction responsibility is typically governed by the project’s location. DOD Directive 4270.5 designates specific Construction Agents by geographical area. Unspecified minor military construction may be executed by the secretary concerned or, in the case of a Defense Agency or a DoD Field Activity, by the secretary concerned of the MILDEP having jurisdiction over the real property facility. 63 For more information on the RFP process, see Step 6: Request for Proposal Preparation and Evaluation in the Congressional Research Service 16 Military Construction: Authorities, Process, and Frequently Asked Questions Construction encompasses several phases, including the planning and design of the project, the solicitation of bids from prospective general contractors, and actual construction of the structure. Normally, one of two general contracting approaches is taken, design-bid-build or design-build, to execute a MILCON project, and the difference between these two methods will affect the type of RFP process used. Design-Bid-Build Portions of Title 40 of the United States Code (§1101 et seq.) require that federal building projects go through a three-step process, referred to as design-bid-build, with an initial design phase, a bid for construction competition, and the actual construction. In the design-bid-build process, each phase is executed under a specific contract. Under design-bid-build, a specializedan architectural or engineering firm is awarded a contract for planning and designing the project. Once completed, a new contract for construction is advertised for bidding by general contractors. These general contractors, in turn, often solicit second- and third- tier subcontractor quotes for specialty items, such as concrete work, plumbing, and electrical work, before tendering their bids for the overall construction contract. When the resulting bids are reviewed and the construction contract is awarded, the general contractor and subcontractors work together as the construction phase begins.

before bidding for the overall construction contract. Design-Build Section 2305a of Title 10 permits a DOD contracting officer to use a shorter two-step process, called design-build, for design and construction. All planning, design, and construction is conducted under a single contract. This requires the firms bidding on the project to have access to all of the skills necessary to plan, design, and construct the project. This master builder concept offers two advantages over design-bid-build: it places full responsibility for the project on a single firm, and it offers the possibility of a reduced schedule by overlapping the project'’s design and construction phases. On the other hand, the comprehensive nature of design-build contracts may limit the number of firms able to compete in the bidding.

Section 2305a authorizes a contracting officer to use the design-build process if he or she determines that

• : 1. three or more offers are anticipated for such contract;
• 2. design work must be performed before an offeror can develop a proposal; and
• 3. the offeror will incur a substantial amount of expense in preparing the offer.

In opting to use the design-build process―rather than the design-bid-build process―Section section 2305a requires the contracting officer to consider relevant information, including the extent to which the project requirements have been adequately defined, the time constraints for delivery of the project, and the capability and experience of potential contractors.

, and other criteria established by the contracting agency. From Contract Award to Completion

USACE, NAVFAC, Army National Guard, and Air National Guard headquarters bureausConstruction Completion USACE, NAVFAC, AFCEC, and ARNG/ANG state headquarters solicit the bids, award the contracts, and provide government oversight and assistance through the project'’s design, contract award, construction, completion, and financial closeoutclose-out. Early on, facility engineers work with a RAND report: RAND Corporation, Obtaining Life-Cycle Cost-Effective Facilities in the Department of Defense, 2013, p. 17, at https://www.rand.org/pubs/research_reports/RR169.html. Congressional Research Service 17 Military Construction: Authorities, Process, and Frequently Asked Questions design firm to create a plan that fits within the scope of the project'’s DD Form 1391.64 These s DD 1391.³² These facility engineers are not permitted to enter into a contract or obligate any funds for the actual construction of the project until associated funding is authorized and appropriated. Once project authorization and appropriations are enacted, they may then solicit bids, through the RFP process, award the contract, and begin construction of the facility. These governmentmilitary engineers will continue to manage the project and monitor construction throughout the process.

Navy Funding Example Funds to pay for the project flow along a fairly any given MILCON project typically flow along a lengthy path of allocation and reallocation that may be illustrated, here using a Navy construction project as an example. Using the budget authority provided for the project (excluding some projects performed under an emergency MILCON authority). An example is provided below using a notional Navy MILCON project.       Using the appropriate budget authority provided for a specified MILCON project by Congress, OMB draws the necessary funds from the Military Construction, Navy, Navy account at the Treasury. U.S. Treasury; OMB then allocates the appropriateappropriated amount to OSD. ; OSD then reallocates the appropriate amountfunds to the Assistant Secretary of the Navy (Financial Management and Comptroller), who; The ASN(FMC) passes the funding to NAVFACa NAVFAC regional command (Atlantic or Pacific). ; NAVFAC continues the process by reallocating the funds to its regional divisions, called Facilities Engineering Commands (FECs). The FEC administers the construction contracts and pays the from the regional command to a subordinate FEC; The FEC, a regional division of the command that maintains resident engineers and contracting officers, administers the MILCON contracts and pays the contractors. contractors.

While a number of factors affect the amount of time required to complete the construction of a facility, many projects span five years or more from the time the DD 1391 is approved to the date a MILCON project, projects generally span five to seven years from the time a DD Form 1391 is approved, to the date the project is completed. MILCON appropriations are usually only available for obligation for five fiscal years, at which time the appropriation expires (though availability of some appropriations is extended for limited purposes).65 After five years, any unexpended MILCON funds are canceled and returned to the U.S. Treasury. MILCON projects that do not have continued funding through regular appropriations, but still require funding to finish construction, may receive reprogrammed funds from other MILCON projects where the DOD component determines there is a funding need and where funds are available, but unobligated.66 64 This initial planning and design can begin before the project itself is authorized by making use of O&M or MILCON funds already appropriated to undifferentiated planning and design accounts (i.e., O&M “advanced planning” and MILCON P&D). 65 GAO-18-101, Defense Infrastructure: Action Needed to Increase the Reliability of Construction Cost Estimates (March 2018), p. 6, https://www.gao.gov/assets/700/690892.pdf. 66 For more information on DOD MILCON reprogramming authorities, see DOD Financial Management Regulation 7000.14-R, Volume 3, Chapter 7, https://comptroller.defense.gov/Portals/45/documents/fmr/Volume_03.pdf. Congressional Research Service 18 Military Construction: Authorities, Process, and Frequently Asked Questions Appendix A. the project is completed.

Appendix A. Frequently Asked Questions (FAQs)

1. Where are the specific military construction projects listed?

for a given legislative authorization and appropriation cycle? Projects requested by the President are listed in the detailed budget justification documentation posted on the Under Secretary of Defense (Comptroller) website under the "“Budget Materials" section.³³

” section.67 Projects recommended for approval by the House and Senate are listed in tables included in the reports submitted by the appropriations and armed servicesarmed services and appropriations committees accompanying their annual bills ( annual bills (National Defense Authorization Act (NDAA), and Military Construction, Veterans Affairs, and Related Agencies Appropriations, and National Defense Authorization Act, respectively). The final, consolidated list of projects for which appropriations and authorizationsauthorizations and appropriations are enacted can be found in the conference reports submitted by the relevant conference committees.

2. What is a Department of Defense Form 1391 (DD Form 1391)?

Department of Defense Form 1391 (also known as DD Form 1391) is a form that originates at the installation installation-level and is used by DOD as a programming document to request construction funding from Congress. The form is used to explain each proposed construction project individually and includes a cost estimate, description of proposed construction, requirement, current situation, impact on operations if the project is not approved, and any useful supplemental data. Appendix C presents an example of a completed DD 1391.

Form 1391. 3. What is "“planning and design"” funding?

The execution of any authorized construction project proceeds through several steps. These are intended to identify any issues and provide conceptual design including cost estimates for construction (e.g., site preparation, facility and supporting structure design, and sequencing of construction) and designing the anticipated facility and each of the roads, ramps, utilities, and the like needed for its operation. These activities may be broken outcategorized by function, with planning handled primarily by civil engineers and design handled primarily by architects. By funding planning and design through a separate, nonspecific appropriation, the scope and costs of projects may be accurately estimated before funds for individual construction projects are requested.

4. How long are funds available for projects?

Prior to FY2018, Congress would provideprovided the authorization of appropriationappropriations of military construction and allow and allowed for the obligation of such funding for up to three years.³⁴ However, appropriations provided for military construction are typically available for obligation for up to five years. The FY2018 National Defense Authorization Act (P.L. 115-91) moved to align the period of authorization with the period of appropriations, providing authorization of FY2018 projects and appropriations through 2022, and extending authorizations provided in FY2016 and FY2017 accordingly.

5. Why does a military construction project need an authorization and a 68 The FY2018 NDAA (P.L. 115-91) moved to align the period of authorization with the period of funding availability, providing authorization of appropriations of FY2018 military construction projects for up to five fiscal years–through October 1, 2022–and also extending authorizations provided in FY2016 and FY2017 for five years, accordingly. The FY2019 NDAA (P.L. 115-232) also authorized military See Under Secretary of Defense (Comptroller), “DoD Budget Request,” at http://comptroller.defense.gov/BudgetMaterials/. Summary budget documents, including the C-1 “Construction Programs” reports, are available going forward from FY1998. Budget documentation for the Army, Navy, Air Force, Special Operations Command, and individual agencies is also linked through each fiscal year’s listing of defense budget materials. 68 Expiration of authorization and amounts required to be specified by law for MILCON are typically provided in section 2002 of the annual NDAA. 67 Congressional Research Service 19 Military Construction: Authorities, Process, and Frequently Asked Questions construction projects and funds for up to five years. Both the House and Senate versions of the FY2020 NDAA include language that authorizes military construction projects for five years. 5. Why does a military construction project need an authorization and a separate appropriation for each construction project? separate appropriation for each construction project?

Section 114, of Title 10, United States Code, specifies, in part, that "“No funds may be appropriated for any fiscal year to or for the use of any armed force or obligated or expended for ... military construction ... unless funds therefore have been specifically authorized by law."” The section goes on to define military construction as "“... any construction, development, conversion, or extension of any kind which is carried out with respect to any military facility or installation ...."” Additionally, 10 U.S.C. §2802 specifies that the Secretary of Defense and the Secretaries of the military departments may carry out such military construction projects, land acquisitions, and defense access road projects "“as are authorized by law."

” In practical application of these statutes, Congress has required project-by-project authorization and appropriation for military construction projects.³⁵

69 6. When the committeean appropriation supports a requested military construction project, why is the amount of the project that is disclosed in the new budget authority sometimes greater than the actual project cost?

New budget authority requested before construction begins is an estimate of project cost while the actual cost calculated at using parametric cost estimating tools, and may include cost buffers to account for unknown variables (e.g., revised land surveys, inflation over the period of construction, etc.). The cost calculated at completion represents the actual expenditure (i.e., the outlay). In March 2018, the Government Accountability Office (GAO) raised concerns that DOD guidance describing the process of developing construction cost estimates does not fully incorporate all the steps needed to develop high-quality, reliable cost estimates.³⁶70 DOD partially concurred with the GAO recommendation, agreeing that DOD cost estimating guidance "“lacks specificity"” in several areas. As a result, DOD intends stated its intent to revise its cost estimating guidance beginning in FY2019.

After Congress authorizes and appropriates funds for afor the project, the budget authority may only be used for specific facilities listed on the associated DD Form 1391. In cases where the budget authority exceeds the actual cost of the project, the congressional appropriators may rescind the remaining budget authority, or approve the reprogramming of remaining unobligated budget authority to be applied to other military construction projects, if requested. ShouldIf actual costs exceed the project'’s allocated budget authority, additional costs may be covered through reprogramming or additional appropriations.

7. What are the "“McCain Rules”? First articulated in 1994 by Senator John McCain, the McCain Rules are criteria that were included in the NDAAMcCain Rules"?

The McCain Rules are criteria that were incorporated into the National Defense Authorization Act for FY1995 (P.L. 103-337, Section 2856) as a sense of the Senate:

69 For more information on authorizations and appropriations see U.S. General Accounting Office, Principals of Federal Appropriations Law, Fourth Edition, 2016 Rev., GAO-16-464SP, March 10, 2016, p. 2-54, https://www.gao.gov/legal/red-book/overview. 70 U.S. Government Accountability Office, Action Needed to Increase the Reliability of Construction Cost Estimates, GAO-18-101, March 2018. Congressional Research Service 20 Military Construction: Authorities, Process, and Frequently Asked Questions Appropriations for any military construction project not included in the DOD annual budget request should be considered for authorization only if the project is–

1. 1. essential to the DOD'’s national security mission,

2. not inconsistent; 2. consistent with past actions withunder the Base Realignment and Closure Act (BRAC),

; 3. in the services'’ Future Years Defense Program,

; 4. executable in the year they are authorized and appropriated,; and and

5. offset by reductions in other defense accounts, through advice from the Secretary of Defense.

The McCain Rules were used as guidance for congressional consideration of Member requests (i.e., earmarks) for military construction projects. While they have had little practical effect on congressional actions sinceSince Congress suspended the practice of funding such Member requests, DOD applies in 2011, Congress has referred to them infrequently. DOD applies the McCain Rules in the formulation of the annual report to Congress on unfunded priorities required by 10 U.S.C. §222a.

8. What is the Future Years Defense Program (FYDP)?

The Future Years Defense Program (FYDP) is an annually -compiled catalogue that summarizes the forces, resources, and programs associated with DOD operations. Formally approved by the Secretary of Defense, the FYDP projects DOD funding, manpower, and force structure needs over a five5-year period. The FYDP is typically completed during the programmingprogramming phase of the Planning, Programing, Budgeting, and Execution (PPBE) process, and is generally updated during the budgeting phase to reflect DOD's final funding decisionsrequest as presented in the annual President's ’s budget request.

During the programming and budgeting phasephases, the highest- priority construction projects that will fit fit within the budgetary guidance provided by the Office of Management and Budget (OMB) will be included in the President's request. The approved projects assigned a lower priority are slated for funding in future years and are generally included in the FYDP. The FYDP is generally submitted to the DOD submits the FYDP to the congressional committees with jurisdiction over defense matters. Note that while the data overall data structure of the FYDP is unclassified, the actual FYDP data aredetailed programmatic data is classified.71 9. Why are certain classified.³⁷

9. Why does a military construction project,projects listed in the FYDP, never seem to move to the front of the line and be ultimately not included in the President'’s budget request?

Individual projects are prioritized by theirfactors such as relevance to military operations, training, quality of life, environmental requirements, etc and training, environmental rules, and service member’s quality of life. A newly identified requirement may be assessed as having a higher priority than projects already in the planningPPBE process. Therefore, some construction, while worthyjustifiable, may be deferred to later years.

Appendix B. 71 For additional information on the FYDP, see CRS In Focus IF10831, Defense Primer: Future Years Defense Program (FYDP), by Brendan W. McGarry and Heidi M. Peters. For more information on the PPBE, see CRS In Focus IF10429, Defense Primer: Planning, Programming, Budgeting and Execution (PPBE) Process, by Brendan W. McGarry and Heidi M. Peters. Congressional Research Service 21 Appendix B. Selected Statutes Governing Military Construction and Repair Authorities

Appendix C. Case Study: Joint Base Myer Henderson Hall, Fort McNair Physical Fitness Center, DD 1391

Included below on Figure C-1 and Figure C-2 is the DD 1391 for the Fort McNair Physical Fitness Center.

Figure C-1. Fort McNair Physical Fitness Center DD Form 1391 (Pages 75-76)

Source: Department of the Army, FY 2002 Amended Budget Submission.

Figure C-2. Fort McNair Physical Fitness Center DD Form 1391 (Page 77)

Source: Department of the Army, FY 2002 Amended Budget Submission.