What does the U.S. Government promise in a Foreign Military Sale?

1.1 Unless otherwise specified, items will be those which are standard to the U.S. Department of Defense (DoD), without regard to make or model.

This section notifies the international partner that the items to be furnished under the FMS case will typically be standard items. The term “standard” in this context means that the items provided will be the same as those currently in use by the DoW. The ultimate purpose of FMS/SC is to enhance U.S. national security. When international partners use standard U.S. systems and components, opportunities for interoperability and logistics cross-servicing are greatly increased which, in turn, enhances U.S. national security. This general commitment to supply standard items will be applied subject to U.S. releasability determinations and technology transfer decisions.

This condition further highlights that items will be provided without regard to make or model. This provision is necessary, because the DoW generally procures using a competitive process. In the competition, the potential exists for any given manufacturer’s make or model product to be selected if the respective product meets the procurement specification requirements such as performance, form, fit, or function. Although the international partner may have received a certain make and model product in a prior procurement, the international partner should not expect to automatically receive the exact same make and model product in future procurements. If the international partner has certain unique requirements for specific makes or models, this condition places the responsibility on the international partner to make those unique requirements known to the IA; otherwise, the standard U.S. configuration will be supplied.

1.2 The USG will furnish the items from its stocks and resources, or will procure them under terms and conditions consistent with DoD regulations and procedures. When procuring for the Purchaser, DoD will, in general, employ the same contract clauses, the same contract administration, and the same quality and audit inspection procedures as would be used in procuring for itself; except as otherwise requested by the Purchaser and as agreed to by DoD and set forth in this LOA. Unless the Purchaser has requested, in writing, that a sole source contractor be designated, and this LOA reflects acceptance of such designation by DoD, the Purchaser understands that selection of the contractor source to fill requirements is the responsibility of the USG, which will select the contractor on the same basis used to select contractors for USG requirements. Further, the Purchaser agrees that the U.S. DoD is solely responsible for negotiating the terms and conditions of contracts necessary to fulfill the requirements in this LOA.

This section establishes the buyer-seller relationship between the international partner and the USG. By accepting the case, the SC partner authorizes the USG representatives to act on its behalf. When the DoW procures items to fulfill the SC partner’s requirements, it will generally apply the same acquisition and contract procedures that it uses in procuring for itself. This affords the SC partner the same benefits and protections that apply to DoW procurements, and is one of the principal reasons why SC partners choose to procure through FMS channels.

1.3 The USG may incorporate anti-tamper (AT) protection into weapon systems and components that contain critical program information (CPI). The AT protection will not impact operations, maintenance, or logistics provided that all terms delineated in the system technical documentation are followed.

1.4 The USG will use its best efforts to provide the items for the dollar amount and within the availability cited.

The term “best efforts” is a legal term that implies a party’s good faith or intent to achieve a stated future outcome; however, this term also recognizes the potential for other factors to subsequently arise that could preclude the offer from actually attaining the intended goal. Therefore, a party performing under a “best effort” condition will not be considered in default of the contract if the intended performance outcomes are not achieved.

In regard to the LOA, this section means that the USG will undertake the execution of each case with the intent to deliver within the estimated cost and delivery dates cited in the LOA, but the USG cannot promise or guarantee these estimates will be achieved. As such, the international partner understands and accepts the risk that the USG may fail to meet the LOA cost and delivery estimates.

1.5 Under unusual and compelling circumstances, when the national interest of the U.S. requires, the USG reserves the right to cancel or suspend all or part of this LOA at any time prior to the delivery of defense articles or performance of defense services. The USG shall be responsible for termination costs of its suppliers resulting from cancellation or suspension under this section. Termination by the USG of its contracts with its suppliers, other actions pertaining to such contracts, or cessation of deliveries or performance of defense services is not to be construed as cancellation or suspension of this LOA itself under this section.

The USG may cancel a case, in whole or in part, only under unusual and compelling circumstances when the U.S. national interest requires it. This provision implements an AECA requirement. The USG carefully reviews international partner requests before extending an LOA offer. As indicated by Section 1.5, an unusual, significant event must occur to cause the USG to change its position and decide to cancel or suspend the FMS case sale. If the USG chooses to cancel a case, the USG is responsible for paying the costs associated with terminating the respective procurement contracts with its suppliers. This does not necessarily mean that the entire case amount will be refunded to the international partner. Given the fact that there will be unusual and compelling circumstances surrounding the exercise of this LOA term, generally a politically negotiated agreement will be necessary to settle the financial obligations and disposition of materiel associated with cancelled or suspended cases.

1.6 U.S. personnel performing defense services under this LOA will not perform duties of a combatant nature, including duties relating to training and advising that may engage U.S. personnel in combat activities outside the U.S., in connection with the performance of these defense services.

1.7 The assignment or employment of U.S. personnel for the performance of this LOA by the USG will not take into account race, religion, national origin, or sex.

Sections 1.6 and 1.7 implement FAA and AECA requirements that apply to U.S. personnel performing SA functions. Section 1.6 emphasizes that U.S. personnel in the international partner’s country will not conduct combat activities in connection with the performance of their Security Assistance (SA) duties. Additionally, Section 1.7 specifies that the U.S. may not consider race, religion, national origin, or sex in assigning individuals to conduct SA functions on behalf of the international partner.

1.8 Unless otherwise specified, this LOA may be made available for public inspection consistent with the national security of the United States.

Section 1.8 imposes the Freedom of Information Act (FOIA) process in whether a case may be made publicly available. However, under FOIA, information provided to the USG in confidence by an international partner may be exempt from disclosure to the public. Conditions, which may exempt the case from public release, include determinations that the case contains information not normally released by the respective foreign government. Any decision to release or withhold information must be coordinated with DSCA and the appropriate legal counsel of the involved DoW component. The official policy for release is found in SAMM, Section C3.5.