6 NMDMB 10-32
LEGAL GUIDANCE

| services provided by the Defense

DONATION OF MEDICAL SUPPLIES | Reutilization and Marketing offices
The Constitution of the united states | (PRMOS)-

provides that "[No] money shall be drawn
from the Treasury, but in Consequence of
Appropriations made by Law; and a regular
Statement and Account of the Receipts and
Expenditures of all public Money shall be
published from time to time." U.S. Con-
stitution, Art. I, § 9, clause 7. This
clause is the basic requirement underlying
all budget and accounting actions taken by
the legislative and executive branches of

the Government. The Congress has the
responsibility for providing appropria-
tions, stating their purpose, and their

period of availability. In short, the
Congress decides what the Government will
buy, when it will do so, and how much money
is available for this purpose.

A corollary to the Congress’ “power of the
purse" is its authority to control the
disposition of all items purchased with
taxpayer funds. Article Iv, § 3, clause 2
of the Constitution gives the Congress
exclusive jurisdiction to dispose of the
real and personal property of the united
States. Without the express or reasonably
implied statutory authorization, the head
of a department or agency of the Govern-
ment, and all subordinate officials, are
powerless to sell, lease, abandon or donate
such property. However, Congress has
enacted several statutes granting
authority to take such actions in specific
circumstances. The most significant is the
Federal Property and Administrative ser-
vices Act of 1949 as amended, 40 U.S.C.
471; 40 U.S.C. 511 (1986). Under its terms,
responsibility for the disposition of
excess property located in the United
tates (hereinafter "domestic excess
property") lies with the Admi trator of
General Services. This responsibility has
been delegated by the Administrator to the
Secretary of Defense. In addition, the
Federal Property and Administrative ser-
vices Act assigns responsibility for the
disposition of excess and surplus property
located in foreign areas (hereinafter
"foreign excess property") to the head of
each executive agency. As a result, the
Secretary of Defense controls the disposi-
tion of most foreign and domestic excess
and surplus property under the control of
the Navy. This is accomplished through the

Detailed guidance on the disposal of Navy
property, including donations, is provided
in the Defense Reutilization and Marketing
Manual, DoD 4160.21-M. The provisions of
this manual are applicable to all elements
of the DoD, their subordinate commands,
activities, and installations worldwide.
The location of the property to be denated
is very important as there are different
sets of rules for domestic excess property
and foreign excess property.

Donations of domestic excess personal
property may be made only to eligible
donees and only after it has been deter-
mined, through the reutilization screening
process, that no federal need exists for
the property. Authorized donees, which are
listed in DoD 4160.21-m (Chapter XIII,
Donations), include ships’ sponsors and
donors of property to the Navy, States in
major disaster areas, public airports,
service education activities (e.g.,
American Red Cross, Boy Scouts, U.S.
Olympic Committee and schools), public
agencies, and veterans’ organizations.
Special procedural requirements, which
vary according to the type of donee
involved in any particular case, are also
set forth. The reutilization screening
rocess, described in Chapter xI, is
intended to identify other potential
federal users for property that is no
longer needed by its present custodian.
This process is a procedural prerequisite
to a donation of Navy property. only when
all reutilization screening has been com-
pleted does domestic excess property be-
come surplus and therefore, eligible for
donation.

DoD 4160.21-M, Chapter VIII, Property
Requiring Special Processing, provides
guidance on medical equipment and noncon-
sumable medical supplies. Accountability
shall be transferred to the DRMO for
reutilization, transfer, and donation
screening. Equipment may not be physically
delivered to the DRMO. When notified by
the generating activity of the
availability of excess equipment, screen-
ing shall be accomplished in accordance
with Chapter xI.


NMDMB 10-92

LEGAL GUIDANCE (CONT.)

Under the manual’s guidelines for domestic

excess property, surplus drugs, biologi-

cals, and reagents that need not be

destroyed and are not designated as unfit |
for human use may be donated to public |
agencies for authorized public purposes
and to nonprofit health educational in-
stitutions. When surplus drugs, biologi- |
cals, and reagents are considered for

donation, a letter of clearance shall be j
obtained from the Food and Drug Administra- |
tion (FDA) indicating which items may be |
safely donated. The State Agency or desig-
nated donee shall obtain the letter of
clearance. The State Agency or designated
donee shall obtain and provide samples of
any items, as needed by the FDA to
accomplish the clearance. Any payment of
costs for laboratory examinations for
quality assurance of samples shall be |
arranged by the State Agency. Before
laboratory examinations are undertaken by
FDA, an estimate of expected cost of the
quality assurance shall be furnished by
FDA to the State Agency. However, donation
of controlled substances is not permitted.

Medical materials and supplies may be
donated to a nonprofit medical or health

organization for use in a foreign country |
under the authority of 40 U.S.C. 512(b) |
(1986). However, this authority is limited |
to medical items that fall within the
definition of "foreign excess property."
Therefore, the items to be donated must be
located abroad. All donations of such
property must conform to the foreign policy
of the United states. Accordingly, Chapter
XVI, Sale, Abandonment, or Destruction of
Foreign Excess Personal Property, of DoD
4160.21-M requires that such donations be |
coordinated in advance with the State ©
Department. |

Point of contact at NMLC is Mr. John R.
Osing, Jr., Office of Counsel, who may be
reached at (301) 619-2157 or by DSN at
343-2157.