Can a Foreign Military Sales purchaser take part in contract negotiations?

The FMS process primarily involves the international partner in LOA related issues. After the LOA is accepted, internal USG processes are undertaken to fulfill the LOA requirements. Generally, these internal processes are accomplished without direct international partner involvement. The SAMM, Section C6.3.5, states that sufficient details should be included in the LOA to allow the U.S. PCO to negotiate and award a contract without requiring foreign country representation or direct involvement in the formal negotiation process.

Although, traditionally, the norm has been no or very limited international partner involvement in the DoW contracting process, policy in both the SAMM and the DFARS does permit international partners to participate in certain elements of the contracting process. This policy supports the overarching intent for the FMS process to provide transparency to international partners. Unfortunately, there can be confusion on the part of employees within the DoW acquisition infrastructure (as well as by international partners) regarding the extent of international partner participation in the DoW contracting process. If an international partner has an interest in participating in the FMS acquisition process, these desires should be identified early in the LOA development process, preferably in the Letter of Request (LOR), in order that the LOA implementation plans can include international partner participation.

SAMM C6.3.5 outlines the areas for potential international partner participation in the DoW contracting process.

Under FMS, the international partner has authorized the USG to solely negotiate the procurement contracts that originate from the LOA requirements.

SAMM C6.3.6.1 states information concerning FMS contract prices can be provided to the international partner in order to demonstrate the reasonableness of the price and to respond to relevant questions concerning contract price. Pricing information may include top-level pricing summaries, historical prices, or an explanation of any significant differences between the actual contract prices and the estimated contract price included in the initial LOA price.

The issue may arise as to whether copies of the USG procurement contract may be released to the international partner. As noted in the SAMM, Section C6.3.6.2, all pertinent information and contractual obligations between the USG and the international partner are identified in the LOA. Consequently, there should normally be no need to provide a copy of the contract to the international partner. However, if the contract is unclassified and provides only for the requirements of the requesting country without including USG or other country requirements, release can be considered by the PCO. Release of internal pricing or negotiation information is not permitted.