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    Are Foreign Military Sales (FMS) programs exempt from 50/50 reporting? If so please tell me where it is written? (meaning - Regulations, Manuals, and or Instructions)


    Bottom line up front – Foreign Military Sales depot maintenance is not subject to the “50-50” statute.  There is no explicit policy/regulatory statement to this effect, but this is the way that the cognizant action agency, the Office of the Deputy Assistant Secretary of Defense (Maintenance Policy and Programs) (ODASD (MP&P)), has interpreted the statute in administering the development of the annual Congressional Report required by the statute. 

    10 U.S.C. 2466 “Limitations on the Performance of Depot Maintenance” states that “not more than 50 percent of the funds made available in a fiscal year to a military department or a Defense Agency for depot-level maintenance and repair workload may be used to contract for the performance by non-Federal Government personnel of such workload for the military department or the Defense Agency.”  In response to a query generated by this AAP question, the ODASD(MP&P) action officer stated:  “The key words in 10 USC, Section 2466 are, ‘...workload for the military department or the Defense Agency.’  Therefore, FMS-related depot-level maintenance or overhaul, being a workload for a foreign country, would not be reportable . . . We intend to cover this in the OSD 50-50 reporting guidance and instructions next year.”  The reporting guidance and instructions refer to the annual data call issued by OSD to the military departments and Defense agencies requesting their inputs to the annual Congressional “50-50” report.

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