Military Construction: Authorities and Processes
Congressional research reportSep 5, 2024
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Military Construction: Authorities and
Processes
Updated September 5, 2024
Congressional Research Service
https://crsreports.congress.gov
R44710
SUMMARY
Military Construction: Authorities and
Processes
R44710
September 5, 2024
Andrew Tilghman
Analyst in U.S. Defense
Congress appropriates several billion dollars annually to support construction projects for the
Infrastructure Policy
Department of Defense’s (DOD’s) worldwide military installations. The military construction
(MILCON) program enables the DOD to plan, program, design, and build infrastructure
including runways, piers, warehouses, barracks, schools, hospitals, child development centers,
and other facilities intended to support U.S. military forces at home and abroad. The MILCON
process involves DOD and Congress acting together to build military facilities, beginning with
development of new military infrastructure requirements and culminating in a completed facility. The lengthy and complex
process can take five to seven years or more. Summarized, the MILCON process encompasses multiple steps, to include
•
Identifying the need for a new facility, which can involve input from installation commanders, military
department headquarters, weapon system program offices, and combatant commanders;
•
Prioritizing construction projects within the military chain of command for the military departments or
other DOD components;
•
Consolidation and budgeting within the Office of the Secretary of Defense to create the military
construction portion of the annual budget request and Future Years Defense Program (FYDP);
•
Finalizing the annual President’s budget request to Congress with a final list of projects seeking funding for
the current budget year;
•
•
•
Reviewing and adjusting the list of projects by congressional defense committees;
Passage and enactment of authorization and appropriation acts; and
Design and execution of the construction projects by a designated DOD construction agent.
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Military Construction: Authorities and Processes
Contents
The Legal and Budgetary Framework ............................................................................................. 1
Authority for MILCON Projects ............................................................................................... 2
Activities Funded Through MILCON Appropriations .............................................................. 3
Selected MILCON Authorities.................................................................................................. 5
Emergency Authorities....................................................................................................... 11
Planning, Programming, and Budgeting ........................................................................................ 13
DD Form 1391 .................................................................................................................. 14
Advance Planning ............................................................................................................. 15
Design and Engineering .................................................................................................... 17
DOD Vetting and Prioritization ............................................................................................... 18
Department of the Army ................................................................................................... 19
Department of the Air Force ............................................................................................. 20
Department of the Navy .................................................................................................... 21
National Guard .................................................................................................................. 22
Office of Management and Budget (OMB) Review ............................................................... 24
Authorizations, Appropriations, and Enactment ............................................................................ 25
Community Project Funding and Congressionally Directed Spending Items ......................... 28
MILCON Execution ...................................................................................................................... 30
Contract Award, Contract Changes, and Construction Completion ........................................ 31
Contract Changes: Cost Increase Thresholds.................................................................... 32
Contract Changes: Scope Change Thresholds .................................................................. 33
Completion........................................................................................................................ 33
Figures
Figure 1. Advance Planning for Military Facilities ....................................................................... 16
Figure 2. Notional Timeline for Military Construction Projects ................................................... 17
Figure 3. Military Construction Oversight Structures ................................................................... 19
Figure 4. Military Construction Planning, Programming, Budgeting and Execution Cycles ....... 27
Figure 5. Legislative Process / Congressional Operations ............................................................ 30
Figure B-1. Example of DD Form 1391: Joint Base Lewis-McChord Barracks (1 of 3).............. 42
Figure B-2. Example of DD Form 1391: Joint Base Lewis-McChord Barracks (1 of 3).............. 43
Figure B-3. Example of DD Form 1391: Joint Base Lewis-McChord Barracks (1 of 3).............. 44
Tables
Table A-1. Summary of Selected Military Construction and Repair Authorities .......................... 34
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Military Construction: Authorities and Processes
Appendixes
Appendix A. Selected Statutes Governing Military Construction and Repair Authorities ............ 34
Appendix B. Example DD Form 1391: Joint Base Lewis-McChord Barracks. ............................ 41
Contacts
Author Information........................................................................................................................ 45
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Military Construction: Authorities and Processes
Introduction
The military missions of the Department of Defense (DOD) and the three military departments—
the Army, the Navy, and the Air Force—drive requirements for facilities and infrastructure at
military installations around the world.1 As missions and technologies change, or as organizations
move to or away from installations, the departments may need to build or dispose of facilities and
infrastructure to meet new requirements. Similarly, the departments may need to replace,
reconfigure, or modernize facilities and supporting infrastructure as buildings age or become
obsolete.
While each of the military departments has a unique process for vetting and setting MILCON
priorities, in general the process conforms with DOD’s Planning, Programming, Budgeting, and
Execution (PPBE) process for resource allocation.2 Most projects can take three to five years or
more to move from the time when senior military officials identify the need for construction of a
new facility (i.e., a requirements determination) through the planning, programming, and
budgeting processes. When adding the time required for congressional approval, implementation
of the federal contracting process (e.g., soliciting bids, awarding a contract), and executing the
construction project, the overall process could span five to seven years or more.
This report describes and explains the life cycle of the MILCON process involving both DOD
and Congress. The cycle typically begins with DOD identifying a new construction requirement
and developing cost estimates based on preliminary planning and design work. It involves
Congress’ reviewing, adjusting and approving military construction plans. After the President
signs into law the authorizations and appropriations for new military construction projects, the
DOD and military departments manage and execute those projects. This report provides details
about the various federal statutes that govern the process, and outlines some of the legal and
institutional challenges that can arise. Typically, military construction (MILCON) accounts for
about than 2% of the total DOD budget.3
The Legal and Budgetary Framework
Title 10, Chapter 169, of the United States Code (hereinafter U.S. Code or U.S.C.) is titled,
“Military Construction and Military Family Housing,” and contains most of the provisions
governing military construction. Section 2801 of Chapter 169 provides definitions of certain
terms used throughout the chapter and elsewhere in law. In general, military construction applies
to all buildings, structures, training ranges, and other improvements to real property that are
1 Military departments include the Department of the Army, Department of the Navy (including the Navy and Marine
Corps), and the Department of the Air Force (including the Air Force and the Space Force).
2 Exceptions include DOD authorities under 10 U.S.C. §§2803, 2804, 2808, and 2854, which are generally not part of
the PPBE process. See DOD, Department of Defense Directive (DODD) 4270.5, Military Construction, updated
August 31, 2018, p. 3, at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/427005p.pdf. 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 CRS Report R47178, DOD Planning, Programming,
Budgeting, and Execution (PPBE): Overview and Selected Issues for Congress, by Brendan W. McGarry.
3 The DOD portion of the FY2023 President’s budget request included a total of $12.2 billion for MILCON accounts
(including family housing), about 1.6% of the department’s total requested discretionary budget authority of $773
billion. For more information, see DOD, Office of the Under Secretary of Defense (Comptroller)/Chief Financial
Officer, Defense Budget Overview: United States Department of Defense Fiscal Year 2023 Budget Request, Table A-1,
“DoD Total (Base + Supplemental) Budget by Appropriation Title,” April 2022, at
https://comptroller.defense.gov/Portals/45/Documents/defbudget/FY2023/FY2023_Budget_Request_Overview_Book.
pdf#page=135.
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located on a military installation.4 The term military installation is defined in 10 U.S.C.
§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 operational control.”5
For the reserve components, Chapter 1803 of Title 10, U.S.C., “Facilities for Reserve
Components,” provides additional information pertaining to joint construction, real property
exchange, and other items related to Reserve Component facilities.
In prescribing the various MILCON authorities and responsibilities, Chapter 169 regularly uses
the term Secretary concerned, referring to the Secretaries of the military departments, or the
Secretary of Defense in the case of a defense agency.6
Each year, the DOD submits a detailed list of MILCON project funding requests as part of the
annual President’s budget request. In most instances, Congress appropriates and authorizes in a
single budget year MILCON funding for individual projects in a lump sum for the entire project
duration, regardless of how long the construction duration. Normally, the money remains
available for obligation for five years.
The legal authorities and requirements for projects vary depending on a host of factors, including
the size of the project and the circumstances that may require it. Unique authorities exist for
national emergencies, for projects supporting contingency operations, and for projects that foster
energy resilience and energy conservation.
Several MILCON-related statutes require DOD officials to notify Congress, specifically the
“appropriate committees of Congress,” about the intent to exercise legal or budgetary authorities.
Title 10 U.S.C. §2801 defines such committees to mean the congressional defense committees
(i.e., the House and Senate Committees on Armed Services and Appropriations).7 Those statutes
may also impose a required waiting period before the Secretary concerned can move forward with
a project. This waiting period provides Congress an opportunity for oversight, allowing time for
Members or committees to ask questions or provide additional direction about individual projects.
Authority for MILCON Projects
The annual National Defense Authorization Act (NDAA) provides authority for DOD’s
construction activities.8 Pursuant to 10 U.S.C. §2802, the Secretary of Defense and the Secretaries
4 See10 U.S.C. §2801.The statute 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.” The statute also specifies that a
MILCON project include “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).”
5
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 military department, except land under the jurisdiction of the Assistant Secretary of the Army having
responsibility for civil works.”
6 10 U.S.C. §2801.
7 Reporting requirements, with respect to any project to be carried out by, or for the use of, an intelligence component
of the Department of Defense, also include the Permanent Select Committee on Intelligence of the House of
Representatives and the Select Committee on Intelligence of the Senate.
8 The MILCON-unique authorization requirements specified in this section of law are in addition to those established
by 10 U.S.C §114, which states that, for specified DOD programs including MILCON, “no funds may be appropriated
for any fiscal year ... unless funds therefor have been specifically authorized in law.”
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of the military departments may carry out such MILCON projects, land acquisitions, and defense
access road projects “as are authorized by law.”9 The section goes on to authorize the following
activities:
•
•
•
•
•
surveys and site preparation;
construction, 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) incident to
the project; and
planning, supervision, administration, and overhead incident to the project.
In the practical application of these statutes, Congress typically authorizes individual military
construction projects, at a line-item level, in the annual NDAA, which originates in the House and
Senate Committees on Armed Services (HASC and SASC). Separately, Congress typically
appropriates funding for such projects in the annual Military Construction, Veterans Affairs, and
Related Agencies Appropriations Act, which originates in the House and Senate Committees on
Appropriations (HAC and SAC).10
Activities Funded Through MILCON Appropriations
The annual Military Construction, Veterans Affairs, and Related Agencies Appropriations Act
provides funding (i.e., budgetary authority) for DOD military construction activities. Often
referred to as the MILCON-VA appropriations bill, this piece of legislation, in general,
appropriates project-specific amounts for major MILCON projects and a variety of other
construction and construction-related activities. Components of the legislation include
•
•
•
Military Construction. Includes funding for specific major construction projects
for various military components; the legislation typically lists specific dollar
amounts for each individual project.11
Unspecified Minor Military Construction. Includes funding for smaller
construction projects—that is, those estimated to cost no more than the current
threshold of $9 million as specified in 10 U.S.C. §2805. Unlike major MILCON
projects, which by definition exceed that threshold, unspecified minor
construction projects are not subject to specific congressional authorization;
therefore, the amounts are appropriated as a lump sum for unspecified minor
military construction, also sometimes known as UMMC. These funds can be
allocated to specific projects at the discretion of the Secretary concerned in
accordance with congressional notification requirements and other restrictions.
Planning and Design. Includes funding for certain activities related to planning
and design of military construction projects. Prior to authorizing and
9 10 U.S.C. §2821 holds a similar requirement for the construction and acquisition of military family housing.
10 For more information on authorizations and appropriations, see CRS Report R46497, Authorizations and the
Appropriations Process, by James V. Saturno; and 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.
11 MILCON appropriations are usually available for obligation for five fiscal years from the start of the fiscal year in
which they are initially appropriated, after which time the appropriation expires (though remains available for certain
limited purposes). After an additional five years, any unexpended MILCON funds are canceled and returned to the U.S.
Treasury.
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•
•
•
•
•
appropriating funding for a MILCON project, Congress generally requires that
the project planning and design be sufficiently developed to include a reliable
cost estimate and be ready for near-term execution during the current budget
year. To meet these requirements, the design phase usually begins before a
project is submitted for consideration in the authorization and appropriations
process.
Family Housing (New Construction and Construction Improvements).
Includes funding for replacement, acquisition, expansion, addition, extension,
and alteration of government-owned military family housing.12
Family Housing (Operations and Maintenance). Includes funding for routine
maintenance, utilities, and the general management of government-owned family
housing (including government-owned family housing at overseas locations) as
well as debt payment, leasing, minor construction, principal and interest charges,
and insurance premiums.
Military Privatized Housing. Congress appropriates funding for the Family
Housing Improvement Fund (FHIF) and the Military Unaccompanied Housing
Improvement Fund (MUHIF), separately.13 Appropriations to these funds allow
the military services to enter into agreements with private housing companies
selected in a competitive process to own, maintain, and operate family housing
through a long-term lease. DOD calls these activities the Military Housing
Privatization Initiative (MHPI).14
Base Realignment and Closure (BRAC). Includes funding for functions
associated with the implementation of past BRAC rounds (i.e., continuing
environmental restoration and caretaker costs) or, if authorized by Congress, any
new BRAC round.15
North Atlantic Treaty Organization (NATO) Security Investment Program.
Includes U.S. contributions to the acquisition and construction of common-use
military facilities and installations (including international military headquarters),
and for related expenses for the collective defense of the North Atlantic Treaty
Area.16
For a detailed look at the MILCON legislation for FY2024, see CRS Insight IN12238, FY2024
Military Construction Appropriations: A Summary, by Andrew Tilghman, and CRS Insight
IN12229, FY2024 NDAA: Military Construction and Housing Authorizations, by Andrew
Tilghman.
12 Construction of government-owned military housing for single service members (often referred to as
Unaccompanied Housing) is typically funded as major MILCON (e.g., a new barracks). However, military family
housing is funded through a separate component of the Military Construction budget that is titled “Family Housing.”
13 See subchapter IV of 10 U.S.C. Ch. 169. Treasury funds for FHIF and MUHIF are established under 10 U.S.C.
§2883.
14 See 10 U.S.C.§2883, “Department of Defense Housing Funds.”
15 Congress continues to provide funding for the implementation of fiscal year (FY) 2005 BRAC decisions. FY2023
appropriations for BRAC totaled $435 million. For more information on BRAC implementation, see the U.S.
Government Accountability Office (GAO) report GAO-22-105207, Base Realignment and Closure: DOD Should
Provide Congress More Complete and Transparent Information,” Sep 28, 2022, at https://www.gao.gov/products/gao22-105207.
16 Title 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.
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Selected MILCON Authorities
Title 10, Chapter 169, of the U.S. Code establishes several distinct authorities that allow DOD to
execute MILCON projects and expend funds for other facilities-related activities.17 Each
authority typically has a monetary threshold or other limitation and these restrictions set the
framework for the MILCON budget and authorization process. They are directly tied to
congressional oversight of DOD’s MILCON-related activities.
When examining notification requirements, monetary thresholds, and other statutory limitations,
it is important to note whether the specific authority applies to the Secretary of Defense, or to
each Secretary concerned individually.18
Most military construction activities are limited to funding that Congress authorizes and
appropriates in MILCON accounts. However, there are certain authorities that allow DOD to use
funds from Operation and Maintenance (O&M) accounts for military construction activities in
certain situations. The services cite “minor construction” in numerous budget justification
documents related to O&M accounts. For example, in the FY2025 budget submission, the Army
cited “minor construction” as a component of its request for “Base Operations Support.”19 The
Navy cited “minor construction” in its FY2025 justification documents as one of numerous
activities carried out with funds from the Sustainment, Restoration and Modernization account.20
These are examples of requested allocations within the O&M account that DOD or the military
services may use for construction projects executed under MILCON-related authorities. Statutes
also allow for the use of money from Research, Development, Test and Evaluation (RDT&E)
accounts in certain circumstances. Appendix A provides a reference table of selected statutes
governing MILCON and repair authorities, lists their limitations, where applicable, and notes
instances where O&M or RDT&E funds may be used under MILCON authority.
Unspecified Minor Construction (10 U.S.C. §2805)
Title 10, Section 2805, of the U.S. Code authorizes the Secretary concerned to use an expedited
process for the authorization of Unspecified Minor Military Construction projects―currently
defined as MILCON projects costing $9 million or less (adjusted annually to reflect the area cost
17 Chapter 169 of Title 10 also includes authorities that support military housing.
18 As noted above, in prescribing the various MILCON authorities and responsibilities, Chapter 169 regularly uses the
term Secretary concerned, referring to the Secretaries of the military departments, or the Secretary of Defense in the
case of a defense agency. These terms are defined under 10 U.S.C. §2801.
19 Department of the Army, Fiscal Year (FY) 2025 Budget Estimates; Operation and Maintenance, Army; see page 191,
Budget Activity 01: Operating Forces; Activity Group 13: Land Forces Readiness Support; Detail by Subactivity
Group 131: Base Operations Support. At
https://www.asafm.army.mil/Portals/72/Documents/BudgetMaterial/2025/Base%20Budget/Operation%20and%20Main
tenance/Regular%20Army%20Operation%20and%20Maintenance%20Volume%201.pdf#page=206.
20 Department of the Navy, FY 2025 President's Budget Submission, Operation and Maintenance, Navy Budget
Activity: Operating Forces, Activity Group: Base Support, Subactivity Group: Sustainment, Restoration and
Modernization at https://www.secnav.navy.mil/fmc/fmb/Documents/25pres/OMN_Book.pdf#page=395.
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factor).21 Construction of new military family housing units is specifically prohibited under this
section.22
Under a temporary provision enacted by the FY2024 NDAA, the commander of the Indo-Pacific
Command is authorized to carry out minor military construction projects that cost less than $15
million.23
In general, the Secretary concerned may allocate funds for specific projects from the Unspecified
Minor Construction accounts, which Congress authorizes in the NDAA and funds in the annual
appropriations act for this purpose. Examples of Unspecified Minor Military Construction might
include the construction of new security gates at the entrance to an installation, new vehicle
maintenance sheds or additions to existing buildings. Under this authority, any project costing
more than $750,000 requires advance approval by the Secretary concerned. In instances where
the estimated total cost of a project is $4 million or less, the funds may be drawn from MILCON
accounts or O&M accounts such as “Base Support Operations,” “Sustainment, Restoration and
Modernization,” or other accounts.
For Unspecified Minor Military Construction projects exceeding $4 million, 10 U.S.C. §2805
requires the Secretary concerned to submit a notification to the appropriate committees of
Congress.24 This notification is to include a justification for the project and the estimated cost.
Following a 14-day waiting period, and pending resolution of any questions or concerns from
Congress, the project can then be executed.
Laboratory Modernization and Revitalization (10 U.S.C. §2805(d) and §2805(g))
The Secretary of Defense has authority that provides flexibility for funding military construction
projects that support the DOD’s laboratories and research facilities. The James M. Inhofe
National Defense Authorization Act for Fiscal Year 2023 authorized and funded the “Defense
Laboratory Modernization Program,” which grants authority for the Secretary of Defense to use
funds from RDT&E accounts to carry out certain military construction projects supporting
technology research that are authorized in law.25 The statute requires the Defense Secretary to
submit project descriptions, justifications and cost estimates with the annual President’s budget
21 Through FY2027, 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 local area construction cost index
for military construction projects; no limitation may exceed $10 million. An area cost factor, also called 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. For more information on unspecified minor military construction, see DOD, Financial Management
Regulation (7000.14-R), Volume 3, Chapter 17, p. 17-15, July 2021, at
https://comptroller.defense.gov/Portals/45/documents/fmr/current/03/03_17.pdf.
22 10 U.S.C. §2805(e).
23 P.L. 118-31, §2810. The temporary provision expires March 31, 2029.
24 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.”
25 See 10 U.S.C. §2805(g). Also see FY2023 NDAA (P.L. 117-263). The use of RDT&E money for military
construction projects under the Sect. 2805 authority is limited to projects at the statutorily defined DOD Science and
Technology Reinvention Laboratories; projects for a DOD federally funded Research and Development Centers that
functions primarily as a research laboratory, and projects at DOD facilities in support of a technology development
program that is consistent with the fielding of offset technologies [defined as the Advanced Sensor Applications
Program].
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request for inclusion in the annual MILCON authorization and appropriations acts. While there is
no specific limit on funding for individual projects carried out under this authority, the statute
does impose a maximum amount of $150 million for RDT&E funds that may be obligated in any
fiscal year for military construction projects.26 In addition, 10 U.S.C. §2805 provides authority for
the use of O&M money to fund certain unspecified minor construction projects intended to
enhance DOD laboratories that conduct research, engineering, testing and evaluation activities.27
Architectural, Engineering, and Design Services (10 U.S.C. §2807)
Title 10, Section 2807, of the U.S. Code allows the Secretary concerned to obtain architectural
and engineering services, and to initiate construction design, in connection with MILCON
projects that are not otherwise authorized by law.28 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. Funding under this authority allows for the
DOD to develop a project’s planning documents so that the project has a reliable cost estimate to
provide to Congress when it is submitted for a funding request during the current year budget
cycle and so the project is potentially ready for execution during the fiscal year of its funding.
Initial activities of the MILCON planning process—activities such as installation master
planning, project identification, and initial environmental reviews—may not be paid for with
MILCON funds. Instead, these activities are typically funded with appropriations from O&M
accounts, Research, Development, Testing and Evaluation (RDT&E) or Procurement accounts.
Those activities—often called “advance planning”—can occur during the initial analysis of an
emerging military requirement and before the service determines the need for a major MILCON
project to meet that requirement. Only after the project development gets underway, and planners
identify a clear requirement for a new construction project, are MILCON funds used to pay for
certain essential parts of the design process, such as engineering and architectural documents for
the bidding or construction phase. Funding for these activities are typically authorized and
appropriated under a category within the MILCON budget known as “Planning and Design.”
Repair of Facilities (10 U.S.C. §2811)
Title 10, Section 2811, of the U.S. Code allows the Secretary concerned to carry out certain
“repair” projects on facilities using O&M appropriations.29 The statute 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 this authority, but repair 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% of the estimated
cost of a MILCON project to replace the facility, the statute also requires the congressional
notification to include an explanation as to why replacement of the facility is not in the best
26 See 10 U.S.C. §2805(g). Also see FY2023 NDAA (P.L. 117-263)
27 10 U.S.C. §2805 defines the term laboratory to include “a research, engineering, and development center” and “a test
and evaluation activity.”
28 The statute allows for the secretary concerned to obtain architectural and engineering services, and to initiate
construction design for projects related to family housing, and projects undertaken in connection with 10 U.S.C. §2854,
“Restoration or replacement of damaged or destroyed facilities.”
29 The O&M sub-accounts associated with this type of maintenance work are generally referred to as Facilities
Sustainment, Restoration, and Modernization, or FSRM.
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interest of the government. This authority prohibits the construction of new facilities or additions
to existing facilities.
The statute for “Repair of Facilities” is broadly written and can be used for a range of projects
that do not include expanding the square footage of a structure. For example, converting a
warehouse into office space might be characterized as a repair if it meets the statutory
requirements. This statute may also provide for the upgrading of HVAC systems or utility
systems. The authority to use O&M funds for repairs may provide budget flexibility for the
military departments, allowing for the execution of improvements and fixes on a more rapid
timeline compared to the traditional MILCON process. The approval process for repair projects is
less complex and time consuming, in part because repair projects do not necessarily have to
directly compete for priority funding with military construction projects across the entire service.
Examples of exercising this authority include a Navy project using $7.9 million in O&M money
for projects that included converting a barracks at Marine Corps Base Camp Pendleton into a
Consolidated Training Facility for the 1st Marine Division schools.30 Another Navy example was
a $5.3 million project at the Navy base in Rota, Spain, which converted a vacant administration
facility into a command-and-control space supporting forward deployed Naval forces.31
Military Construction Projects for Energy Resilience, Energy Security, and
Energy Conservation (10 U.S.C. §2914)
The Energy Resilience and Conservation Investment Program (ERCIP) is funded as a subset of
the Military Construction, Defense-Wide account. The ERCIP is intended to fund projects for the
military services and other components that improve energy resilience, contribute to mission
assurance, save energy, and reduce DOD’s energy costs.32 ERCIP accomplishes this through
construction of high-efficiency energy systems and technologies or through modernizing existing
energy systems.
ERCIP activities are authorized under Title 10, Section 2914, of the U.S. Code, which allows the
Secretary of Defense to improve the energy resilience, energy security, and energy conservation
of its fixed installations. Energy resilience is defined as “the ability to avoid, prepare for,
minimize, adapt to, and recover from anticipated and unanticipated energy disruptions in order to
ensure energy availability and reliability sufficient to provide for mission assurance and
readiness, including mission essential operations related to readiness, and to execute or rapidly
reestablish mission essential requirements.”33
The ERCIP, authorized by Congress in Section 2851 of the John Warner National Defense
Authorization Act for Fiscal Year 2007 (P.L. 109-364), has focused on projects that support
energy resilience for critical mission requirements to help ensure that military installations can
continue to maintain operational readiness in the event of a crisis, such as a natural disaster or
cyberattack that damages the traditional energy grid.34 The department has sought to prioritize
30 Department of the Navy Installation Energy Resilience Strategy, p. 24, February 2020, at
https://www.secnav.navy.mil/eie/Documents/DON-Installation-Energy-Resilience-Strategy.pdf
31 Ibid.
32 Mission assurance is a term to describe the ability of a unit or facility to continue performing and achieving military
missions despite any unexpected challenge that may arise, such as a deliberate attack or natural disaster. The statutory
definition of energy resilience is included in 10 U.S.C. §101.
33 Statutory definition of energy resilience is included in 10 U.S.C. §101.
34 Statement of Mr. Paul Cramer, performing the duties of Assistant Secretary of Defense (Energy, Installations &
Environment), testimony before the Senate Committee on Appropriations Subcommittee on Military Construction and
(continued...)
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energy resilience improvement projects on installations listed on the DOD Mission Assurance
Priority List, which is a list of installations across the military that are considered most critical to
readiness.35
Total appropriations provided for the ERCIP program for FY2024 were $634 million.36 Examples
of ERCIP projects funded in the FY2024 MILCON-VA Act included $57 million for a new
microgrid with backup system at Vandenberg Space Force Base in California.37 Another example
was authorization of $25 million for a microgrid and battery storage system for F.E. Warren Air
Force Base in Wyoming.38
ERCIP also funds water resilience projects that improve or enable access to water in support of
mission functions; however, ERCIP does not fund projects that are solely for water compliance,
meaning a project whose sole objective is to enable installations to meet environmental and
permitting standards.39
The law allows for the Secretary concerned to use MILCON funding for these projects. It also
allows for the use of O&M funding for energy conservation and resilience projects if the
Secretary concerned notifies the congressional defense committees about the intent to do so. Such
notifications require detailed information that includes: the source of those O&M funds to be
used; the reasons why the project needs to be prioritized; and, in the case of projects designed
specifically for energy conservation, a savings-to-investment ratio that would result from the
improved energy efficiencies. The Secretary concerned is limited to a maximum obligation of
$100 million in O&M funding under this authority for any fiscal year.40 Projects can be carried
out only after a seven-day waiting period following notification of the appropriate congressional
defense committees.
Veterans Affairs, May 18, 2022, at
https://www.appropriations.senate.gov/imo/media/doc/ASD(EIE)%20Cramer_OSD_%20SACM%20MILCON%20and%20Family%20Housing%20Hearing%20Statement%20(5.18.22).pdf.
35 DOD, Office of the Under Secretary of Defense for Sustainment, Fiscal Year 2024 Energy Resilience and
Conservation Investment Program Guidance from the Deputy Assistant Secretary of Defense (Environment and Energy
Resilience), October 15, 2021, at
https://www.acq.osd.mil/eie/Downloads/IE/FY2024%20ERCIP%20Program%20Guidance.pdf.
36 See Joint Explanatory Statement accompanying P.L. 118-42 P.L. 118-42, Division A, Military Construction,
Veterans Affairs, and Related Agencies Act, 2024, page 56, at https://www.govinfo.gov/content/pkg/CPRT118HPRT55007/pdf/CPRT-118HPRT55007.pdf#page=62.
37 See P.L. 118-31, PDF page 775, at https://www.congress.gov/118/plaws/publ31/PLAW-118publ31.pdf. Also see
DOD Comptroller, FY 2024 Energy Resilience and Conservation Investment Program (ERCIP) Project List by
State/Country,
https://comptroller.defense.gov/Portals/45/Documents/defbudget/fy2024/budget_justification/pdfs/07_Military_Constr
uction/15-Energy_Resilience_and_Conservation_Investment_Program.pdf#page=10.
38 See P.L. 118-31, PDF page 778, at https://www.congress.gov/118/plaws/publ31/PLAW-118publ31.pdf#page=778.
Also see DOD Comptroller, FY 2024 Energy Resilience and Conservation Investment Program (ERCIP) Project List
by State/Country, at
https://comptroller.defense.gov/Portals/45/Documents/defbudget/fy2024/budget_justification/pdfs/07_Military_Constr
uction/15-Energy_Resilience_and_Conservation_Investment_Program.pdf#page=37.
39 According to DOD policy guidance, proposed projects that are solely for water compliance (i.e., a project whose sole
objective is to enable installations to meet environmental and permitting standards) will not be considered or selected
for submission to Congress. DOD will consider water resilience and water security projects for submission when they
contribute to overall energy resilience. See DOD, Office of the Under Secretary of Defense for Sustainment, Fiscal
Year 2024 Energy Resilience and Conservation Investment Program Guidance from the Deputy Assistant Secretary of
Defense (Environment and Energy Resilience), Section 2.4, October 15, 2021, at
https://www.acq.osd.mil/eie/Downloads/IE/FY2024%20ERCIP%20Program%20Guidance.pdf#page=8.
40 10 U.S.C. §2914(c)(3).
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Projects Supporting Installation Resilience (10 U.S.C. §2815)
The Secretary of Defense has certain authorities to carry out projects that the Secretary
determines would enhance military installation resilience, energy security, and energy
conservation or address known vulnerabilities of fixed installations.41 Under 10 U.S.C. §2815, the
Secretary may carry out projects at locations outside of a military installation or facility if the
project would “preserve or enhance” the resilience of a military installation or community
infrastructure that the Secretary determines is “necessary to maintain, improve or rapidly
establish installation mission assurance and mission-essential functions.” The Secretary may also
carry out stormwater management projects if those projects support the resilience of a military
installation, a defense access road, or “other essential civilian infrastructure.” Such stormwater
management projects may also be carried out for the purpose of “protecting nearby waterways
and stormwater-stressed ecosystems.”
For projects in support of military installation resilience, the Secretary may use funding from
O&M accounts if the Secretary notifies Congress about the estimated cost of the project, the
source of funds for the project, and a certification that waiting to seek funding in the next budget
cycle under the next Military Construction Authorization Act “would be inconsistent with
national security or the protection of health, safety or environmental quality.” Such projects are
subject to a seven-day waiting period following congressional notification (and pending
resolution of any concerns articulated by Congress). The total maximum amount of O&M
funding that can be obligated under Section 2815 cannot exceed $125 million in any fiscal year.42
Authority for Certain Construction Projects in Friendly Foreign Countries (10 U.S.C.
§2817)
Under Title 10, Section 2817, the Secretary of Defense may carry out certain construction
projects outside of a military installation in a friendly foreign country if the geographical
combatant commander determines that the construction project is “necessary to support vital
United States military requirements at an air port of debarkation, sea port of debarkation, or rail
or other logistics support location.”43 The statute requires the Secretary to make a determination
that deferral of the construction project for inclusion in the next NDAA is inconsistent with
military requirements and other national security or national interests of the United States. The
Secretary is authorized the use of O&M funds for projects carried out under this statute.
Individual projects carried out under this authority are limited to a total cost of $15 million, and
the statute limits the Secretary from obligating more than $200 million in any fiscal year under
the authority. The Secretary of Defense is required to notify the congressional defense
committees about projects carried out under this authority and such projects are subject to a 30day waiting period after congressional notification.
41 10 U.S.C. §101(e)(8) defines the term military installation resilience as “the capability of a military installation to
avoid, prepare for, minimize the effect of, adapt to, and recover from extreme weather events, or from anticipated or
unanticipated changes in environmental conditions, that do, or have the potential to, adversely affect the military
installation or essential transportation, logistical, or other necessary resources outside of the military installation that
are necessary in order to maintain, improve, or rapidly reestablish installation mission assurance and mission-essential
functions.” For more information, see CRS Insight IN11566, Military Installation Resilience: What Does It Mean?
42 10 U.S.C. §2815(e)(3).
43 10 U.S.C. §2817.
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Emergency Authorities44
The following DOD authorities are intended to be exercised in the event of a national emergency,
declaration of war, or other acute circumstance in which the Secretary concerned determines a
MILCON project is immediately required to meet national security needs, or in which waiting for
the next MILCON authorization act would be inconsistent with national security or national
interest.45 These authorities allow for funding and executing MILCON projects outside the
traditional PPBE process in certain circumstances.
Emergency Construction (10 U.S.C. §2803)
Under Title 10, Section 2803, of the U.S. Code, 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 NDAA).46 When the Secretary concerned initiates a project under this section, the
statute requires the Secretary concerned to notify the appropriate congressional committees in
writing. The congressional notification must include the justification for the project, the estimated
cost of the project, the reason for invoking Section 2803, and the source of the funds to be used.
Accordingly, when requesting approval for an emergency construction project, DOD submits a
notification and request for the reprogramming of MILCON funds in accordance with this
statute.47 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 available (unobligated) MILCON appropriations that have not been
obligated.48 There is also a mandatory waiting period of five days, beginning on the date the
Secretary concerned notifies the appropriate committees of Congress, before the emergency
construction project may begin.
Contingency Construction (10 U.S.C. §2804)
Section 2804 of Title 10 of the U.S. Code permits the Secretary of Defense to use MILCON funds
appropriated specifically for use under this authority 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.”
44 These authorities are generally not applicable to the planning, programming, and budgeting process.
45 10 U.S.C. §2804.
46 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 DOD, Financial Management Regulation (7000.14-R), Volume 3, Chapter 17, p. 17-19,
July 2021, at https://comptroller.defense.gov/Portals/45/documents/fmr/current/03/03_17.pdf.
47 For more information on DOD regulations pertaining to emergency construction authority, see DOD, Financial
Management Regulation (7000.14-R), Volume 3, Chapter 17, pp. 17-18, July 2021, at
https://comptroller.defense.gov/Portals/45/documents/fmr/current/03/03_17.pdf.
48 The Military Construction, Veterans Affairs, and Related Agencies Appropriations Act, 2023, Division J, Sec. 116,
states: “...any funds made available to a military department or defense agency for the construction of military projects
may be obligated for a military construction project or contract, or for any portion of such a project or contract, time
before the end of the fourth fiscal year after the fiscal year for which funds for such project were made available.”
Found at https://www.congress.gov/117/bills/hr2617/BILLS-117hr2617enr.pdf#page=486.
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The authority under Section 2804 is rarely invoked and is generally reserved for projects
requested by combatant commands supporting multi-service requirements.49 Projects must be
carried out using funds specifically appropriated for this authority (which historically have been
appropriated as a line item under the Military Construction, Defense-Wide account.)50 The DOD
has a unique process for approving and prioritizing requests under this authority. Combatant
commanders verify requests and forward them through the Chairman of the Joint Chiefs of Staff
(CJCS), who is responsible for assigning priority among competing requests.51 The CJCS then
forwards them to the Office of the Secretary of Defense (OSD). OSD may also receive requests
from the individual military departments and is responsible for coordinating the congressional
notifications.52
Section 2804 requires the Secretary to submit a report in writing to the appropriate congressional
committees justifying the project and the invocation of this authority and including cost estimate.
Further, although DOD may initiate a MILCON project under this authority without specific
congressional authorization, actual construction may not begin prior to the receipt of appropriate
DOD and congressional approval.53
Construction Authority in the Event of a Declaration of War or National
Emergency (10 U.S.C. §2808)
In the event of a declaration of war or declaration of a national emergency by the President that
requires the use of the armed forces, 10 U.S.C. §2808 permits the Secretary of Defense to initiate,
or to authorize the Secretaries of the military departments to carry out, MILCON projects not yet
authorized in law.54 Any unobligated MILCON 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 to 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.
In the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021
(P.L. 116-283), Congress imposed caps on the amount of total funding that the Secretary may
initiate under 10 U.S.C. §2808 and also imposed additional congressional notification
requirements.55 Currently, the total cost of all military construction projects undertaken using the
49 See GAO, Defense Infrastructure: Actions Needed to Enhance Oversight of Construction Projects Supporting
Military Contingency Operations, GAO 16-406, September 8, 2016, at https://www.gao.gov/products/gao-16-406.
50 For example, the conference report (H.Rept. 112-331) accompanying the Consolidated Appropriations Act, 2012
(P.L. 112-74) listed $10 million for contingency construction, within the Military Construction, Defense-Wide account.
See H.Rept. 112-331, p. 1283. Versions of the legislation since 2012 have not included appropriations for contingency
construction under 10 U.S.C. §2804.
51 See GAO, Defense Infrastructure: Actions Needed to Enhance Oversight of Construction Projects Supporting
Military Contingency Operations, GAO-16-406, September 8, 2016, at https://www.gao.gov/products/gao-16-406.
52 Ibid.
53 For more information on Contingency Construction, see DOD, Financial Management Regulation (7000.14-R),
Volume 3, Chapter 17, Section 3.3.3, pp. 17-19 to 17-20, July 2021, at
https://comptroller.defense.gov/Portals/45/documents/fmr/current/03/03_17.pdf.
54 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.
55 P.L. 116-283, §2801; 134 Stat. 4317-4319.
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authority during the national emergency may not exceed $500 million. For funding used for
projects only within the United States, the total cost may not exceed $100 million.
The statute requires the Secretary of Defense to provide a detailed notification that includes the
cost of the projects planned under this authority and the impact that would have on previously
planned MILCON projects that may be delayed or canceled to fund the emergency project
requested.56 The Secretary may carry out the project after a five-day waiting period.
For more information on use of 10 U.S.C. §2808 authority, see CRS Insight IN11017, Military
Construction Funding in the Event of a National Emergency; and CRS Report R45937, Military
Funding for Southwest Border Barriers. Also see CRS Report R47979, DHS Border Barrier
Funding Developments: FY2021-FY2024, by William L. Painter.
Restoration or Replacement of Damaged or Destroyed Facilities (10 U.S.C.
§2854)
Title 10, Section 2854, of the U.S. Code provides unique authorities to fund the restoration or
replacement of damaged or destroyed facilities. The Secretary concerned may authorize the use of
MILCON funding for projects under this authority subject to notification of the appropriate
congressional committees. The notification must include the project’s current cost estimate, a
justification for carrying out the project under this authority and notification of the source of the
funds intended for use. Projects using MILCON funding under this authority are subject to a 14day waiting period following congressional notification.
The Secretary concerned also may authorize the use of O&M funding for MILCON projects
under this authority if the damage at issue was the result of a natural disaster or a terrorism
incident. For example, after Hurricane Michael inflicted damage on Tyndall Air Force Base in
Florida in 2018, the Air Force invoked this authority for the first time to expedite some new
construction.57 To exercise this authority, the Secretary concerned must notify the appropriate
congressional committees and provide information that includes: the project’s current cost
estimate; certification that waiting for authorization under the next Military Construction
Authorization Act would be inconsistent with national security or the protection of health, safety,
or environmental quality; and, in the case of damage to a facility rather than destruction, a
certification that the replacement project is more cost-effective than repair or restoration. Use of
O&M funds under this authority are subject to a seven-day waiting period following
congressional notification. The statute also limits the Secretary concerned to a maximum of $100
million in O&M funding under this authority for any fiscal year.
Planning, Programming, and Budgeting58
Initial ideas for a potential MILCON project can come from a variety of sources. The need for a
particular construction project may be part of a top-down initiative (e.g., the creation of new
56 See §2808(e) Notification Requirement.
57 Defense Department, “Tyndall Rebuild taps into unique funding for New Fire Stations,” Oct. 17, 2022, at
https://www.dvidshub.net/news/431910/tyndall-rebuild-taps-into-unique-funding-new-fire-stations.
58 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 report, RAND, Obtaining Life-Cycle Cost-Effective Facilities in the Department of Defense, 2013, at
https://www.rand.org/pubs/research_reports/RR169.html. For more information on the PPBE process, see CRS In
Focus IF10429, Defense Primer: Planning, Programming, Budgeting, and Execution (PPBE) Process, by Brendan W.
(continued...)
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missions for a given military installation or the movement of units or offices between
installations) or it may be the result of modernization or replacement of existing facilities
determined at the local level (i.e., by installation commanders and other local stakeholders).
Some planning and design work must begin before DOD will prioritize a project for a funding
request in the PPBE process. Congress requires requests for authorization and appropriation to
include only those projects that have a reliable cost estimate and projects that can realistically be
executed during the fiscal year authorized, so requests must show documented progress on
planning and design. Insufficient planning and design development can prevent a project from
receiving approval for the current budget year.
The progress of a particular project’s planning and design is considered to be an indicator of the
accuracy of its cost estimate. Senior military leaders and the White House’s Office of
Management and Budget (OMB) may be reluctant to put forth a particular project for the current
budget year if the planning and design work remains in an early phase, because incomplete design
work increases the risk that a projected cost will increase and result in the need for
reprogramming or additional funding authorization and appropriation. Projects and their cost
estimates are rated in accordance with a standardized cost estimating classification system.59 This
rating, on a scale of one to five, offers a metric for the maturity of a project’s planning and design
work. (For example, a Class 5 estimate indicates the most limited planning and design
development, and is therefore more likely to see a change in the cost estimate as the project
progresses. Conversely, a Class 1 estimate reflects a fuller project definition, with design and
engineering work that is near completion, and likely reflects a more accurate estimate of the final
construction costs.) OSD does not have a policy requirement for projects to meet a certain class
rating for inclusion in an annual budget. However, a rating that reflects more advanced planning
and design work can weigh in favor of a project in the final determination for whether a
MILCON project will be included in the President’s budget request.60
DD Form 1391
Central to the planning-programming-and-budgeting-process for MILCON projects is the
Defense Department (DD) Form 1391, a key document that will accompany the individual project
through the entire budget approval and legislative process. (See Appendix B for an example DD
Form 1391). Development of the DD Form 1391 for a particular project starts at the early
planning stage and continues as work advances on design, architectural documents, and
engineering documents. The form’s main components include:
•
•
a cost estimate;
a description of the proposed construction;
McGarry and CRS Report R47178, DOD Planning, Programming, Budgeting, and Execution (PPBE): Overview and
Selected Issues for Congress, by Brendan W. McGarry.
59 The Cost Estimating Classification System is a commonly accepted standard across the construction industry and is
set by the American Association of Cost Engineers (AACE). For additional information, see AACE International
Recommended Practice No. 10S-90, Cost Engineering Terminology,” p. 36, at https://web.aacei.org/docs/defaultsource/rps/10s-90.pdf?sfvrsn=70.
60 OMB policy requires that requests for construction funding require that planning and design work be sufficiently
developed to “ensure that a contract for construction could be awarded during the budget year.” OMB Circular No. A11, Preparation, Submission, and Execution of the Budget, July 2024, at https://www.whitehouse.gov/wpcontent/uploads/2018/06/a11.pdf#page=119.
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•
•
•
the specific military requirement for the project (e.g., a change in mission or
deterioration of facilities already in use);
the current facility situation at the installation; and
the impact on military missions if the project is not approved, and any other
needed justification information.61
Note in Appendix B that the DD Form 1391 requires supplemental information that includes the
status of the project’s design work. The forms must specifically state the date that the project
reached the status of 35 percent design completion, the percent completion at the time of
submission, and the date when the design is scheduled to be 100 percent complete.
Advance Planning
The planning and design process for a military construction project includes two distinct phases.
The first phase involves advance planning, which examines the military requirements for a
potential project and includes potential site analysis. As part of the initial advance planning phase
(see Figure 1), installation engineers and other public works staff evaluate the proposed need for
new or improved facilities—such as training classrooms, firing ranges, barracks, or housing—and
compare that to the facilities that already exist.62 During the initial consideration of the new
requirement, military officials may consider alternatives to the MILCON process, such as
renovating existing infrastructure or leasing a facility. The installation’s engineering team weighs
the costs and time required to meet the military requirement by rehabilitating or altering existing
structures on site compared to the cost and time required to execute new construction.63 Engineers
and other members of the installation’s planning team then make a preliminary determination
whether renovation of an existing facility, new construction, or leasing is more appropriate to
satisfy the military need.64 This initial phase is funded using money from the military’s O&M
accounts. In some cases, this work is carried out by existing staff. In some instances, a service
may specifically request O&M funding for this purpose. For example, in justifying its FY2023
budget request, the Navy requested $214.8 million for a budget item (technically known as a
budget sub-activity group, or SAG) called Air Operations and Safety Support. This line finances
several operations, including Aviation Facilities and Landing Aids, which supports the
"development/revision of aviation facilities planning and design criteria."65
The advance planning phase, funded through O&M accounts, may include:
61 DD Form 1391 is associated with several other required DOD forms and their corresponding processes that help to
populate, or are informed by, the document. For example, the ENG FORM 3086 is a tool that cost engineers use to
estimate project costs for the DD Form 1391.
62 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.
63 Rehabilitation, renovation, or alternation of existing structures may be potentially funded with O&M money using a
less time-consuming budget approval process. For example, the Repair of Facilities (10 U.S.C. §2811) authority can
fund certain types of construction projects without requiring line item-level budget authority and authorization.
64 Constantine Samaras, et al., Development, Construction, and Operating Process and Barriers to Life-Cycle CostEffectiveness, RAND Corporation, 2013, Ch. 2, p. 7, at https://www.rand.org/pubs/research_reports/RR169.html.
65 For more information, see DOD, Department of the Navy, Fiscal Year (FY) 2023 Budget Estimates, Justification of
Estimates, Operation and Maintenance, Navy, April 2022, p. 1A4A, available at
https://www.secnav.navy.mil/fmc/fmb/Documents/23pres/OMN_Book.pdf#page=79.
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•
•
•
•
•
developing and documenting the military requirements underpinning the
proposed military construction project;
developing or revising an installation’s master plan to ensure the proposed
project comports with the base’s long-term needs;
conducting site studies to identify a location for a proposed project;
preparing engineering analysis and development of technical design parameters;
and
preparing environmental impact statements or other requirements under the
National Environmental Policy Act (NEPA; P.L. 91-190);
Figure 1. Advance Planning for Military Facilities
Preliminary Analysis will determine whether a MILCON project is needed.
Source: CRS analysis of Department of Defense documents. See for example, DOD, Financial Management
Regulation (7000.14-R), Volume 3, Chapter 17, page 17-25, Also see Air Force Instruction 32-1021, February 25,
2016, page 10.
This advance planning process is led by the uniformed installation commander and the
installation’s public works department, which may consist of engineers, community planners,
environmental specialists, and other public works professionals. When an individual installation
has competing prospective MILCON projects, the prioritization at the installation level generally
begins with meetings between the installation’s engineers and representatives of all major resident
organizations and other installation tenants. This group is sometimes referred to as an Installation
Facilities Board. The result of these meetings―a prioritized list of construction needs―is
presented to the installation commander, who then accepts or adjusts the priorities to create a final
list of proposed projects for service-level review.
If and when the installation commander determines that a new construction project is necessary,
and requires funding through the MILCON process, the team creates a DD Form 1391. From that
point of initial determination that a new MILCON project is needed, the formal process can take
about five years until the project is approved and construction completed (see Figure 2).
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Figure 2. Notional Timeline for Military Construction Projects
The MILCON process begins with the determination that an emerging military requirement
warrants a new construction project.
Source: CRS analysis of Department of Defense documents. See for example Department of Defense Directive
4270.5, “Military Construction,” updated Aug. 13, 2018, at
https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/427005p.pdf. Also see Commander, Naval
Facilities Engineering Systems Command, NAVFAC Instruction 7045.1, “Proper Use of Military Construction
Funds.”
Notes: Timelines for specific projects will vary depending on their complexity to develop and construct as well
as their prioritization by decisionmakers at DOD, White House and Congress.
Design and Engineering
As a project progresses, the advance planning (funded by O&M accounts) transitions to the
design phase (funded by MILCON accounts).66 Funds authorized and appropriated for MILCON
“planning and design” may support continuing development of the DD Form 1391, as well as
detailed design and construction deliverables, such as request for proposal (RFP) documents or
construction drawings and specifications.67
The department’s annual defense budget typically includes lump-sum appropriations for planning
and design that are budgeted for specific components, such as a service branch, a combatant
66 Depending on the size and cost of the project, moving into the design phase—and receiving MILCON Planning and
Design money—typically requires approval from the military service leadership, secretary’s office, or congressional
notification. For example, in the Army, authorization to use MILCON Planning and Design funds is based on Army
headquarters issuance of a “design code” – See Army Regulation 420-1, page 4-36d(1) “ (1) Army planning and design
funds will be used for USACE project design activities after issuance of a design code.”
https://armypubs.army.mil/epubs/DR_pubs/DR_a/pdf/web/ARN15517_R420_1_admin_FINAL.pdf#page=196. Also
see the DOD’s Financial Management Regulation notes that the secretary concerned has authority to allocate Planning
and Design funding as long as the design costs do not exceed the threshold for reporting (see
https://comptroller.defense.gov/Portals/45/documents/fmr/archive/03arch/03_17_Dec96.pdf.)
67 As noted previously, funding for additions or alterations to existing buildings and the construction of new buildings,
where costs exceed $4 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.
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command, or a defense agency.68 Such funding generally is not tied to any specific project; rather,
it is intended to be used to fund progress on planning and design efforts on projects that have not
yet been fully funded and authorized by law, or design for projects that remain in the
development and prioritization phase. 69 The design phase aims to finalize a reliable cost estimate
for Congress to consider in the authorization and appropriations process and also to achieve a
level of detailed design that will enable the DOD to award a construction contract (or contracts)
for the project to potentially begin construction early in the fiscal year of its authorization. The
design phase may include
•
•
•
Site surveys and mapping;
Detailed architectural drawings and engineering plans; and
Pre-construction contract award activities, including the preparation of bid
documents and liaison with prospective bidders and construction teams.
DOD Vetting and Prioritization
While most MILCON projects involve initial input from the local installation commander, from
there the requests follow different paths depending on the DOD organization responsible for
managing a given military installation. Figure 3 depicts these paths. In short, the service branches
internally prioritize their MILCON projects and send a final list of top priorities to OSD as part of
the annual defense budgeting process. A key part of this process is ensuring that the individual
projects have sufficient documentation of planning and design to ensure the reliability of the cost
estimate and viability of near-term execution.
When developing MILCON plans, the military services typically work several years in advance
of the current budget cycle. (See Figure 4.) While finalizing a list of MILCON projects for
inclusion in the upcoming President’s budget request, the services are regularly developing and
revising the Future Years Defense Program (FYDP), which summarizes the military’s five-year
plan for the forces, resources, and programs associated with DOD operations.70 That involves
making preliminary decisions about likely priorities two, three, and four years into the future to
ensure that upcoming projects have time to develop and meet the planning and design
requirements (and accurate cost estimates) when they are ready for inclusion in an authorization
and appropriation request.
68 To avoid confusion between O&M funds used for advance planning and the MILCON “planning and design” funds
used for design, some DOD officials describe the money appropriated under 10 U.S.C. § 2807 as “MILCON-D.” As an
example, see NAVFACINST 7045.1, “Proper Use of Military Construction Funds,” Dec. 6 2020.
69 10 U.S.C. §2807 requires congressional notification if design services are estimated to exceed $1 million.
70 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). For more 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 process, see CRS In Focus IF10429, Defense Primer: Planning, Programming, Budgeting, and Execution
(PPBE) Process, by Brendan W. McGarry and CRS Report R47178, DOD Planning, Programming, Budgeting, and
Execution (PPBE): Overview and Selected Issues for Congress, by Brendan W. McGarry.
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Figure 3. Military Construction Oversight Structures
Source: CRS graphic based on DOD component documentation.
Notes: The technical support agencies (USACE, NAVFAC and AFIMSC) provide technical expertise in
developing MILCON projects, but they are not directly involved in the planning and prioritization of MILCON
budgets.
Department of the Army
The Army’s single agency responsible for worldwide installation management is Installation
Management Command (IMCOM), which is a major subordinate command of Army Materiel
Command (AMC).71 In 2016, the Department of the Army reorganized IMCOM’s two domestic
regions—known then as the Atlantic Region and Central Region—into its current structure of
three functionally aligned directorates that are co-located with three major Army commands.
Those directorates include IMCOM Readiness, which is co-located with Army Forces Command
(FORSCOM); IMCOM Training, co-located with Army Training and Doctrine Command
(TRADOC); and IMCOM Sustainment, co-located with AMC.72 The two overseas directorates—
IMCOM Europe and IMCOM Pacific—remain regionally aligned and are located in Sembach
Kaserne, Germany, and Fort Shafter, Hawaii, respectively.
The IMCOM directorates work with local installation commanders to develop MILCON requests,
which the directorate compiles, prioritizes, and forwards to IMCOM’s headquarters, located at
Fort Sam Houston in San Antonio, Texas. The headquarters consolidates and prioritizes the
project lists from across the Army and submits a list for further review by the Deputy Chief of
Staff (DCS), G9 Installations, the service’s senior officer responsible for setting installationsrelated policy and administering installation resource programming.73
71 Army Material Command, AMC Major Subordinate Commands, at https://www.amc.army.mil/Organization/Major-
Subordinate-Commands/. Also see Susan A. Merkner, “IMCOM transitions to Army Materiel Command,” The Real
McCoy, March 22, 2019, at https://static.dvidshub.net/media/pubs/pdf_46766.pdf.
72 U.S. Army, “IMCOM transforms regions into new directorates,” press release, January 24, 2017, at
https://www.army.mil/article/181181/imcom_transforms_regions_into_new_directorates.
73 U.S. Army, Deputy Chief of Staff, G-9 (Installations), About Us website, at https://www.acsim.army.mil/about.html.
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The U.S. Army Corps of Engineers (USACE) supports the process of developing the DD Form
1391 and offering architectural, engineering, and construction services and support in the
development and use of new facilities. 74 The Centers of Standardization (COS) is the USACE
element assigned to assist Army headquarters. The COS advises senior Army leaders on the
technical aspects of the MILCON program.75
As part of DOD’s annual budgeting process, the Army’s G-9 office forwards a final list of
MILCON requests to the Army’s Deputy Chief of Staff, G-8 (Financial Management), which
assesses and integrates the installations-related resourcing requirements into the overall budget of
the Army.
At this point, the Army’s construction requests shift to the civilian Army secretariat (the staff
supporting the Secretary of the Army). Responsibility for further review and consideration falls to
the Assistant Secretary of the Army for Installations, Energy, and Environment (ASA(IE&E)).
Once approved, the Assistant Secretary forwards the Army’s proposed construction projects to
OSD, where senior officials consolidate the Army’s list of proposed projects with those of the
other services and defense agencies into a prioritized DOD master list.
Department of the Air Force76
Air Force installation commanders and Major Commands (MAJCOMs) provide MILCON
requests to the Air Force Installation and Mission Support Center (AFIMSC), a subordinate unit
of the Air Force Materiel Command (AFMC). The AFIMSC helps develop the justifications for
individual projects, compile the DD Form 1391s, and create an Integrated Priorities List (IPL) for
the Air Force.77 These tasks involve working through the Air Force Corporate Structure (AFCS)
and with the Facility Management Division of the Air Staff (HAF/A4).78 HAF/A4 Civil Engineer,
Facilities Division reviews MILCON programs, integrates Total Force (Active Air Force, Air
National Guard, Air Force Reserve) MILCON projects into a single program and presents the
MILCON program to the AFCS for approval.79 A list of MILCON projects then moves through an
approval process involving the Assistant Secretary of the Air Force for Energy, Installations, and
Environment (SAF/IE), and finally to the Assistant Secretary of the Air Force for Budget
(SAF/FMB), who is responsible for sending a final list of Air Force MILCON projects to OSD.
74 U.S. Army, U.S. Army Corps of Engineers, “Fact Sheet,” at https://www.usace.army.mil/Media/Fact-Sheets/Fact-
Sheets-View/Article/475469/installation-support/.
75 U.S. Army, Department of the Army Pamphlet 420–1–2, “Army Military Construction and Nonappropriated-Funded
Construction Program, Development and Execution,” at
https://armypubs.army.mil/epubs/DR_pubs/DR_a/pdf/web/PAM%20420-1-2.pdf.
76 For more detailed information on how the Air Force manages its MILCON program, see U.S. Air Force, HQ/
AFIMSC/AFCEC, Program Management Plan for Air Force MILCON Execution, September 25, 2017, archived at
https://www.wbdg.org/FFC/AF/POLICY/PgMP_MILCON_HAF_AFCEC_AFIMSC_Final.pdf.
77 U.S. Air Force, HQ/ AFIMSC/AFCEC, Program Management Plan for Air Force MILCON Execution, September
25, 2017, pp. 4-5, archived at
https://www.wbdg.org/FFC/AF/POLICY/PgMP_MILCON_HAF_AFCEC_AFIMSC_Final.pdf.
78 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 major commands (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 U.S. Air Force, Planning, Programming, Budgeting, and Execution System Training Program Reference Manual,
pp. 43-46, at http://afacpo.com/AQDocs/PPBE.pdf.
79 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://www.wbdg.org/FFC/AF/AFI/afi_32_1021.pdf.
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The AFIMSC houses the Air Force Civil Engineer Center (AFCEC), which provides engineering
services to Air Force installations. AFCEC supports installation-level planning, documents design
and construction schedules, and oversight of construction contracts.80 Though AFCEC is not
technically a DOD-designated construction agent (i.e., an approved DOD activity assigned the
design or construction execution responsibilities associated with a service’s MILCON program81),
AFCEC serves as the design/construction manager for active component projects.82 In many
instances, USACE or Naval Facilities Engineering Systems Command (NAVFAC), as the DOD’s
designated Construction Agents, provide support for Air Force construction projects.
Space Force
The U.S. Space Force (USSF) has its own governance process and conducts its own MILCON
Working Group, with support from AFIMSC, to develop a USSF IPL that is separate and distinct
from the U.S. Air Force IPL. Starting in FY2023, the Department of the Air Force (DAF)
allocates to USSF a portion of the requested DAF MILCON budget.83
Department of the Navy
The Navy’s installation commanders and their chain of command within Commander, Navy
Installations Command (CNIC), initially prioritize Navy MILCON projects. The CNIC is
responsible for worldwide management of the Navy’s shore installations. Within CNIC, two
divisions—-Facilities and Environmental (N4) and Strategy and Future Shore Integrated
Requirements, (N5) —coordinate efforts to plan and prepare MILCON priority lists. The Shore
Mission Integration Group (SMIG) evaluates regional priority lists to determine the Navy
priorities for MILCON. CNIC consolidates, reviews, and prioritizes the projects for submission to
the Navy’s senior leadership.84
The execution agent for Navy MILCON projects is the Naval Facilities Engineering Systems
Command (NAVFAC), which operates worldwide to plan, build, and maintain Navy facilities,
and deliver base services. NAVFAC is organized under two regional commands—NAVFAC
Atlantic in Norfolk, Virginia, and NAVFAC Pacific in Pearl Harbor, Hawaii. NAVFAC reports
overseeing a total of 13 component commands.85 At most Navy bases, NAVFAC has a Resident
Officer in Charge of Construction (ROICC) to oversee MILCON projects for the base. NAVFAC
helps prepare and refine the DD Form 1391s and provides input on whether individual projects
80 Ibid., p. 5.
81 DOD, Department of Defense Directive (DODD) 4270.5, Military Construction, updated August 31, 2018, at
https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/427005p.pdf.
82 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 in some instances, AFCEC has provided management and oversight via Design Manager/Construction
Manager (DM/CMs). See U.S. Air Force, Air Force Instruction (AFI) 32-1023, Designing and Constructing Military
Construction Projects, December 23, 2020, at https://static.e-publishing.af.mil/production/1/af_a4/publication/afi321023/afi32-1023.pdf.
83 Information provided to CRS by the U.S. Air Force legislative liaison office via email on May 7, 2024, on file with
author.
84 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.
See “Commander, Navy Installations Command website, “History of CNIC,” at
https://www.cnic.navy.mil/About/History/.
85 For a list of NAVFAC component commands, see https://www.navfac.navy.mil/About-Us/.
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have sufficient planning and design work completed to execute the construction project during
the current budget cycles and their authorization and appropriations window. NAVFAC reviews
and confirms the readiness and executability of submitted construction projects; NAVFAC does
not prioritize projects. Project prioritization is the role of CNIC and the Navy leadership.
NAVFAC’s input on the status of a project’s planning and design development can be a factor in
the Navy’s prioritization decisions for the current year budget submissions.
After CNIC compiles a list of prioritized projects (and NAVFAC evaluates the readiness of those
projects) CNIC submits the list to the Chief of Naval Operations (CNO) through the Deputy
Chief of Naval Operations (Fleet Readiness and Logistics, OPNAV N4) and, more specifically,
the Director, Shore Readiness Division (OPNAV N4I). 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 submission to OSD.
Marine Corps
The Marine Corps, as a component of the Department 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. Throughout the process, NAVFAC supports the Marine Corps in the same way it
supports the Navy, by refining the DD Form 1391 documentation for each project and confirming
its readiness and executability.
At the same time, the Marines do channel their construction requests through their own chain of
command for requirements screening and project prioritization. After Marine Corps installation
commanders determine construction requirements, the Marine Corps Installations Command
(MCICOM) screens and consolidates the projects and their requisite DD Form 1391.86 MCICOM
reviews and prioritizes the projects and forwards the list to their respective Fleet Marine Force
(FMF) headquarters.87 After the FMF headquarters review, proposed MILCON projects move to
the Headquarters, Marine Corps, Installations and Logistics (HQMC/I&L) office. There, Marines
finalize a list of MILCON priorities and submit that 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.88
Unless the National Guard is federalized (i.e., called to active duty according to statutory
provision), each state’s National Guard is its own distinct military organization, with the governor
as its commander in chief and the adjutant general, or TAG, as its senior military officer.89 Each
National Guard is a joint organization under the TAG. Army National Guard (ARNG) and Air
National Guard (ANG) MILCON requirements are handled somewhat differently.
86 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. See
https://www.mcicom.marines.mil/.
87 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.
88 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.
89 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.
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In many instances, federal statute requires the federal government and state government to share
the cost of construction for state-based Guard facilities, with the federal government contributing
no more than 75 percent of the total estimated cost of the project.90 As a result, state governments
are often required to provide matching funds equal to at least 25 percent of the cost of a National
Guard construction project. There are numerous exceptions to this rule. The federal government
may fund up to 100 percent of a project’s cost if the Guard’s federal mission or other DOD
requirement is primarily driving the construction requirement. States may submit requests for
federal funding that exceed 75 percent of an individual project through the Army (for the ARNG)
or the Air Force (for the ANG).91
Army National Guard92
Within a state’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 the principal advisors to the TAG regarding all real property,
facilities, construction, and environmental management programs.93 CFMOs conduct master
planning and develop a long-range construction plan (LRCP). CFMOs also prepare DD Form
1391 for each proposed MILCON project.94 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.
Within NGB, ARNG staff (such as those in the Installations Division, or ARNG-ILI) review the
submitted MILCON projects from all jurisdictions and prioritize those into an Infrastructure
Requirements Plan (IRP). The IRP serves as the prioritized list of Army Guard MILCON projects
for federal funding. The director of the ARNG provides the IRP to the Army Staff, for review by
90 The unique authorities for funding construction of National Guard facilities are outlined in by 10 U.S.C. §§18231-
18240. Specifically, the state contribution requirement is outlined in §18236, “Contributions to States; other use
permitted by States,” which states in section (b): “(b) A contribution made for an armory or readiness center under
paragraph ... may not exceed the sum of... a percentage of the cost of construction (exclusive of the cost of
architectural, engineering and design services) calculated so that upon completion of construction the total contribution
(including the contribution for architectural, engineering and design services) equals 75 percent of the total cost of
construction (including the cost of architectural, engineering and design services).” This section of the statute also notes
the contribution is required “[e]xcept as otherwise agreed when the contribution is made.”
91 Information Paper provided to CRS by the National Guard Bureau, “Army National Guard Major Military
Construction (MILCON) – State Share Requirements,” dated April 5, 2022. On file with the author.
92 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.ngbpmc.ng.mil/Portals/27/Publications/ngr/ngr%20415-5.pdf?ver=2018-0907-082540-720.
93 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, for example,
the Texas Military Department CFMO at https://tmd.texas.gov/construction-and-facilities-management-office.
94 National Guard Regulation 415-5, Construction, Army National Guard Military Construction Program Development
and Execution, March 6, 2015, p. 2, at https://www.ngbpmc.ng.mil/Portals/27/Publications/ngr/ngr%204155.pdf?ver=2018-09-07-082540-720.
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the DCS, G-9.95 From this point, the ARNG’s MILCON projects list moves through the review
and approval process within the Department of the Army and Army Secretary’s office. ARNG
projects follow the Army scoring process for prioritization within the ARNG portion of the
MILCON Total Obligation Authority (TOA) for inclusion the FYDP.96
Air National Guard97
MILCON projects for the ANG are primarily intended to meet current and new missions
stemming from the Department of the Air Force’s corporate Air Force strategic basing process.
The Base Civil Engineers (BCEs) for each state’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 compiles and
prioritizes the projects within the state according to the TAG’s general guidance. After approving
a final list, the TAG sends the state’s highest priority ANG projects to the NGB for evaluation by
the ANG Headquarters Air Staff.98 The ANG Air Staff combines and refines the list for the
director of the ANG, who approves and forwards a final list of ANG MILCON projects to
Headquarters, Air Force (HAF) staff.99 From that point, the ANG MILCON projects list is
integrated into the broader review and approval process for the entire Department of the Air
Force. The Facility Management Division, AF/A4CF, reviews MILCON programs, and integrates
Total Force (Active Air Force, Air National Guard, Air Force Reserve) MILCON projects into a
single prioritized list.100 The Deputy Assistant Secretary of the Air Force for Installations
(SAF/IEI) oversees all Air Force and ANG MILCON programs for the Department of the Air
Force.101
Office of Management and Budget (OMB) Review
The joint review of the DOD’s annual budget by the OSD and the White House’s Office of
Management and Budget (OMB) generally occurs between September and December, and
focuses on the administration’s priorities; aspects of this process may vary year to year depending
on current events or leadership preferences.102 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 OMB will be
included in the President’s budget request. Some of the approved projects assigned a lower
95 National Guard Pamphlet 210-20, “Real Property Development Planning Procedures for The Army National Guard,”
at https://www.ngbpmc.ng.mil/Portals/27/Publications/NGPAM/ngpam%2021020.pdf?ver=oRUMEnfm1FpHJToG0Kuskg%3d%3d
96 Ibid.
97 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.
98 Air Force Policy Directive 32-10, 20 JULY 2020, Civil Engineering Installations and Facilities, see page 4, section
3.4, at https://static.e-publishing.af.mil/production/1/saf_ie/publication/afpd32-10/afpd32-10.pdf#page=4
99 99 Air Force Instruction 32-102, Planning and Programming Military Construction (MILCON) Projects, February
2016, see page 5, at https://www.wbdg.org/FFC/AF/AFI/afi_32_1021.pdf#page=5
100 Ibid.
101 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#page=7.
102 CRS In Focus IF10429, Defense Primer: Planning, Programming, Budgeting, and Execution (PPBE) Process, by
Brendan W. McGarry
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priority are slated for funding in future years and are typically included in the Future Years
Defense Program (FYDP).103 One reason that some projects may be scheduled in the FYDP rather
than the current-year budget is their planning and development is not sufficiently developed,
raising questions about the reliability of the existing cost estimate or making it unlikely the
projects could be executed on the timeline of current appropriations.104 Therefore, some MILCON
projects may survive the screening process and reach high-level review only to be placed in the
budgeting queue for a future year’s submission. While the FYDP is an indicator of future
priorities, it is also possible that a MILCON project’s priority may diminish in a later year
because budget levels fluctuate, missions change, and the entire construction list is reviewed and
reevaluated every year.
Authorizations, Appropriations, and Enactment105
The annual budgeting cycle formally begins with the release of the President’s budget request
(traditionally in February, but sometimes later), which includes a list of military construction
projects prioritized by the DOD and White House. The annual process normally ends with
enactment of two key pieces of legislation – the NDAA and the MILCON-VA Act. See Figure 5.
A list of the military construction projects authorized each year along with the specific amount of
funding authorized is contained in the NDAA. A similar but separate list of military construction
appropriations (i.e., projects that are to receive budgetary authority) is contained in the
explanatory statement that accompanies the annual MILCON-VA Act.106
The two pieces of legislation may also provide policy guidance relevant to MILCON matters. In
addition to what is included in the bills themselves, committee reports accompanying the armed
services and appropriations bills may provide useful information. For example, the accompanying
reports may direct military leaders to provide reports to Congress about certain matters; may set
guidance for funding policies or express the views of the defense committees on policy matters
not directly addressed in the legislation.
While the committees and subcommittees exercise jurisdiction over the legislation, they also
typically provide opportunities for individual Members of Congress not assigned to the
committees of jurisdiction to provide input regarding specific MILCON projects. During the
period when the committees are drafting the legislation, the committees may issue guidance for
103 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). 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
CRS Report R47178, DOD Planning, Programming, Budgeting, and Execution (PPBE): Overview and Selected Issues
for Congress, by Brendan W. McGarry.
104 CRS In Focus IF10831, Defense Primer: Future Years Defense Program (FYDP), by Brendan W. McGarry and
Heidi M. Peters
105 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.
106 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.
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Members wishing to submit input for on MILCON matters. The committees’ guidance might
suggest additional documentation that could prove useful to the committee in its 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.
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Figure 4. Military Construction Planning, Programming, Budgeting and Execution Cycles
Source: Derived from Department of the Army briefing information provided to CRS. On file with the author.
Notes: The blue-green box labeled “OSD” illustrates the stage at which the Office of the Secretary of Defense (OSD) reviews and provides input on the annual
MILCON budget requests. The yellow box labeled “PBR” reflects the process of incorporating Defense Department requests into the final President’s budget request
(PBR) that the White House submits to Congress each year.
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Community Project Funding and Congressionally Directed
Spending Items
In some instances, Congress may insert into the authorization and appropriations acts MILCON
projects that were not included in the President’s budget request. This often results from a specific
request from a Member, known as “earmarks” — formally referred to as “Congressionally
Directed Spending” in the Senate and “Community Project Funding Items” in the House of
Representatives. In consideration of specific military construction projects that the DOD and
White House did not prioritize for the current budget cycle, Congress often defers to a set of
guidelines known as the “McCain Rules.” These rules are not codified in statute. They were
approved by the Senate in a nonbinding resolution included in the FY1995 NDAA (P.L. 103-337;
§2856). The “McCain Rules” state that consideration of authorization and appropriations for any
military construction project not included in the annual budget submission from the White House
should be limited to MILCON projects that are:
•
•
•
•
•
considered essential to the DOD’s national security mission;
consistent with past actions under the Base Realignment and Closure Act
(BRAC);
in the services’ Future Years Defense Program;
executable in the year they are authorized and appropriated; and
offset by reductions in other defense accounts, through advice from the Secretary
of Defense.
DOD applies these rules in the formulation of the annual report to Congress on unfunded
priorities required by 10 U.S.C. §222a, generally known as the unfunded priorities lists (UPL) or
unfunded requirements (UFRs).107
The defense committees may issue guidance to Members as a part of the annual budget cycle.108
For example, in March 2022, the House Appropriations Committee’s subcommittee on Military
Construction, Veterans Affairs and Related Agencies issued a “Fiscal Year 2023 Member Request
Guide.” That guidance stated in part: “The eligible lists of community projects are those that are
submitted to Congress by the Secretary of Defense or his/her designee. Projects that only appear
on a project list provided by a base commander, as opposed to the Secretary or his/her designee,
will not be accepted.” 109 In addition, the guidance describes such eligible lists as the Future Years
Defense Program (FYDP) or Unfunded Requirements/Unfunded Priorities Lists (UFRs/UPLs).
The practice of Congress inserting earmarks was suspended in 2011 but resumed in 2021.
Members typically have to meet certain requirements under Senate and House rules to have their
107 For additional information, see CRS In Focus IF11964, Defense Primer: Defense and Intelligence Unfunded
Priorities, by Brendan W. McGarry.
108 For example, the Senate Committee on Appropriations issued guidance for the FY2025 budget cycle.
https://www.appropriations.senate.gov/imo/media/doc/fy2025_appropriations_requests_general_guidance1.pdf. Also,
the House Committee on Appropriations, Subcommittee for Military Construction, Veterans Affairs and Related
Agencies issued guidance specific to MILCON-related requests. https://appropriations.house.gov/sites/evosubsites/republicans-appropriations.house.gov/files/evo-media-document/fy25-military-construction-veterans-affairsand-related-agencies-guidance.pdf.
109 Fiscal Year 2023 Member Request Guide Subcommittee on Military Construction, Veterans Affairs and Related
Agencies, at
https://appropriations.house.gov/sites/democrats.appropriations.house.gov/files/FY23%20MilConVa%20Member%20
Request%20Guide.pdf
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Military Construction: Authorities and Processes
requests included as provisions in defense authorization and appropriations acts.110 Such
requirements included Members posting requests online and certifying that they had no financial
interest in the projects.111
In total, 142 additional MILCON projects totaling nearly $1.56 billion were included in the
MILCON-VA Appropriations Act for 2024, (Division A of P.L. 118-42).112 Before enactment of a
MILCON-VA appropriations act that includes projects not identified in the budget request, DOD
may identify its priority military construction projects that had not yet been funded by Congress,
had undergone some preliminary design, and would be ready for execution within the fiscal
year.113 After members submit requests, Congress reviews the potential projects, discusses them
with DOD officials, and decides which ones to include in the annual appropriations act.114
110 See, for example, guidance promulgated by the House Appropriations Committee, Transparency website,
“Appropriations Requests,” at https://appropriations.house.gov/transparency/appropriations-requests-2023. For more
background, see CRS Report RS22866, Earmark Disclosure Rules in the House: Member and Committee
Requirements, by Megan S. Lynch and CRS Report RS22867, Earmark Disclosure Rules in the Senate: Member and
Committee Requirements, by Megan S. Lynch.
111 GAO, Tracking the Funds: Specific Fiscal Year 2022 Provisions for Department of Defense, GAO-23-105914,
October 4, 2022, at https://www.gao.gov/products/gao-23-105914.
112 See the table, “Community Project Funding/Congressionally Directed Spending Items,” in the joint explanatory
statement to accompany the Military Construction, Veterans Affairs, and Related Agencies Appropriations Act, 2024,
(Division A of P.L. 118-42) published in the Congressional Record for March 5, 2024, p. S1235, at
https://www.congress.gov/118/crec/2024/03/05/170/39/CREC-2024-03-05.pdf#page=184.
113 For example, see GAO, Tracking the Funds: Specific Fiscal Year 2022 Provisions for Department of Defense,
GAO-23-105914, October 4, 2022, at https://www.gao.gov/products/gao-23-105914.
114 GAO, Tracking the Funds: Specific Fiscal Year 2022 Provisions for Department of Defense, GAO-23-105914,
October 4, 2022, at https://www.gao.gov/products/gao-23-105914.
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Military Construction: Authorities and Processes
Figure 5. Legislative Process / Congressional Operations
Source: CRS graphic. Information drawn from House and Senate committee websites, CRS Report RS21363,
Legislative Procedure and Process Resources for Congressional Staff, by Jennifer E. Manning and Maura Mullins.
MILCON Execution
Execution of the construction for MILCON projects may begin after the President signs the
authorization and appropriations legislation into law. Construction encompasses several phases,
including the solicitation of bids from prospective general contractors, awarding of contracts,
construction of the facility or infrastructure, outfitting of equipment, and any warranty period
provided by contractors involved in the project.
The responsibility for executing and managing MILCON projects typically falls to one of the two
DOD Construction Agents (DCA), NAVFAC or USACE, or to a designated Design
Manager/Construction Manager (DM/CM).115 However, ARNG and ANG headquarters bureaus
115 Traditionally, the USACE has supported the Army and NAVFAC supports the Navy and Marine Corps.
Historically, either NAVFAC or USACE have executed design and construction for the Air Force MILCON program.
In some instances, 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, Air Force Instruction (AFI) 32-1023, Designing and
Constructing Military Construction Projects, December 23, 2020, at https://static.epublishing.af.mil/production/1/af_a4/publication/afi32-1023/afi32-1023.pdf. Also, 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.
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Military Construction: Authorities and Processes
manage their respective MILCON projects separately.116 If additional architectural and
engineering work is needed for the project, the DCA may complete the final design in-house, or
the DCA may choose to contract with an external design firm to finalize the planning and design
work. In instances where the service-designated construction agents/managers are not able to
perform the design or construction work themselves, they are responsible for preparing,
advertising, evaluating, and awarding design and construction contracts. Both NAVFAC and
USACE have in-house design capabilities. Their MILCON workloads generally exceed their
capacity, thus requiring architect/engineer (A/E) contracts for preparing some construction
contract documents. With limited exceptions, notably U.S. Naval Construction Battalions (or
CBs, known as “Seabees”), the armed services do not have in-house construction capabilities.
Therefore, NAVFAC and USACE typically hire one or more general contractors to execute
construction. These contracts are awarded through a specific Request for Proposal (RFP)
process.117
Typically, the DCAs opt for one of two general contracting approaches, Design-Bid-Build (DBB)
or Design-Build (DB), to execute a MILCON project. The difference between these two methods
will affect the type of RFP process used. For DBB projects, the full design is prepared either by
in-house resources or via an A/E contract. This results in a full set of drawings and specifications
on which the construction contractors may submit bids. This design strategy is most common
when the government may want to provide significant input into the design process. For DB
projects, the contractor is responsible for hiring and managing the design firm to complete the
design. This type of contract is more typical for lower complexity projects. The executing agency
will decide which contracting method is in the best interest of the government and is the most
feasible means to get a project completed in a timely manner within budget.118
Contract Award, Contract Changes, and Construction Completion
After a project is authorized and funding is appropriated, the DCA may begin soliciting bids
through the RFP process in accordance with the project’s DD Form 1391. The DCA will continue
to manage the project and monitor construction throughout the process.
After construction contracts are awarded, construction contracts frequently need changes. For
MILCON projects, in particular, extended timelines and unexpected changes to military missions
can amplify the need for changes to original contracts. These changes can be due to oversights in
the design process, updated regulations, unforeseen site conditions or mission changes that result
in revised military requirements. The DCA must evaluate each potential change to determine if it
is within the scope of the project and contract prior to the contracting officer formalizing a
modification to the contract. These changes often lead to increased costs. For this reason, DOD
adds a standard contingency rate of 5% to initial cost estimates and programs it into the original
budget request.119 If that contingency funding is insufficient to cover the project’s needs, there are
mechanisms for increasing the project’s funding. Mechanisms include increasing the
116 The Army and Air National Guard are authorized to use their United States Property and Fiscal Officer (USPFO) to
perform the actions of the DCA.
117 For more information on the RFP process, see Step 6: Request for Proposal Preparation and Evaluation in the
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.
118 The federal regulations concerning Design-Bid-Build projects are outlined in portions of Title 40 of the United
States Code (§1101 et seq.), and those relevant to Design-Build projects are in 10 U.S.C. §2305a. Both statutes apply to
federal building contracts in general and are not unique to the MILCON process.
119 Unified Facilities Criteria (UFC) Programming Cost Estimates for Military Construction, see page 8, section 4-6.1,
at https://www.wbdg.org/FFC/DOD/UFC/ufc_3_730_01_2011_c2.pdf.
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Military Construction: Authorities and Processes
authorization through a reprograming request in accordance with the DOD Financial
Management Regulation or a formal request for additional funding authorization through the next
annual NDAA and MILCON-VA appropriations bill.120 The mechanisms for increasing the
authorization are outlined in 10 U.S.C. §2853 and are based on specified thresholds.
Contract Changes: Cost Increase Thresholds
In some instances, the actual cost of executing a military construction project turns out to be less
than the amount of money originally authorized and appropriated for that project. This leftover
funding is sometimes referred to as “bid savings.” In other instances, a project may ultimately
cost more than the amount originally authorized and appropriated by Congress.
Under 10 U.S.C. §2853, the Secretary concerned must notify the appropriate congressional
committees if a project has cost increases or decreases of more than 25% of the total authorized
cost of the project or 200 percent of the minor construction project ceiling, whichever is lower.
(This is often referred to as a “2853 notification.”) The notification must include: the amount of
the cost increase; the reasons for the increase; description of the funds to be used to cover the cost
increase, and certification from the Secretary concerned that the cost increase is sufficient to meet
the mission requirement identified in the justification data provided to Congress as part of the
request for authorization of the project
In addition to or distinct from statutory notification requirements in 10 U.S.C. §2853, DOD may
seek to have bid savings or other unobligated money transferred, or “reprogrammed” from one
project to another. The requirements for reprograming money depend on several factors. Each
year, generally, the report accompanying the annual MILCON-VA appropriation bill includes
language defining the threshold requiring prior approval for reprogramming funds within a
military construction appropriations account.121 In FY2024, the threshold was set at $6 million or
25 percent of the original funded amount, whichever is less.122 This threshold helps determine the
process for seeking additional money: Key elements of that process include the following:
•
For project cost increases within this threshold, Below Threshold Reprogramming (BTR)
is permitted.123 BTRs require internal service processing only, though they must still be
funded with bid savings within the applicable MILCON appropriations.124
•
If the required project cost increase exceeds the BTR limit and bid savings are available
to cover the cost overrun, Congress requires a formal reprogramming of funds to assign
available bid savings to the project. These Prior Approval (PA) reprogramming actions
are typically routed from the service, through the Office of the Under Secretary of
120 Under 10 U.S.C. §2853, the cost authorized for a military construction project may be increased or decreased by not
more than 25% of the total authorized cost of the project or 200% of the minor construction project ceiling specified in
section 2805(a), whichever is less. The current project ceiling specified in section 2805(a) is $9 million.
121 Ibid.
122 The threshold was set for FY2024 in the joint explanatory statement to accompany the Military Construction,
Veterans Affairs, and Related Agencies Appropriations Act, 2024, (Division AJ of P.L. 118-42) published in the
Congressional Record for March 5, 2024, p. S1224, at https://www.congress.gov/118/crec/2024/03/05/170/39/CREC2024-03-05.pdf#page=173.
123 See DOD, Financial Management Regulation (7000.14-R), Volume 3, Chapter 6, “Reprogramming of DoD
Appropriated Funds,” at https://comptroller.defense.gov/Portals/45/documents/fmr/current/03/03_06.pdf.
124 “Bid savings” refers to any money remaining in the MILCON budget that results from contracts that ultimately
(after implementation of the federal contracting process) cost less than the amount that Congress authorization and
appropriated to fund the project.
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Military Construction: Authorities and Processes
Defense Comptroller (OUSD(C)) for approval, and then sent to the appropriate
congressional committees for final approval.125
•
If the required cost increase exceeds the BTR limit and bid savings are not available, the
DOD may submit a request for the additional money to complete the project in the next
budget cycle. This can be included as a specific line item in the next annual NDAA and
MILCON-VA appropriations bill as a “Cost to Complete (CTC), assuming that the funds
can be allocated within the military department’s total budget authority.
Contract Changes: Scope Change Thresholds
If the Secretary concerned determines that the scope of a defined facility within a project must be
increased or decreased for some reason, the change may require, depending on the extent of the
increase or decrease, the Secretary concerned to notify the appropriate congressional committees
or seek additional authorization.126
If the increase in scope is 10% or less of the original scope reported in the DD Form 1391, the
Secretary concerned may approve that increase with a required notification of the appropriate
congressional committees and a 14-day waiting period. If the scope increase required exceeds
10%, OSD must submit a request to Congress for approval in the NDAA during the budget cycle
with special authorization language to be included under Division B for the service in question.
Section 2853 also limits potential decreases in the scope of a MILCON project.127 If the scope of
work for a military construction project is reduced by more than 25% from the amount specified
for that project, the Secretary concerned must grant a waiver for the reduction and is required to
notify the appropriate congressional committees. 128 The notification should describe the
reduction in the scope of work and the reasons for the decrease; and certify that the project in its
reduced scope can still meet the mission requirement originally identified in the justification data
provided to Congress. The Secretary’s waiver takes effect after a 14-day waiting period following
the notification of the appropriate congressional committees.
Completion
Upon construction completion, the facility is inspected and turned over to the customer for
outfitting of any specialized equipment or furnishings not included in the main construction
contract. During the transfer of the facility, the DD Form 1354 documents the components of the
construction with quantity and values, and provides the basis for the value of the property in the
real property database system for the installation. Following turnover of the facility, the DCA
continues to monitor the facility for any warranty issues prior to financial closeout of the project.
See DOD, Financial Management Regulation (7000.14-R), Volume 3, Chapter 7, “Reprogramming of Military
Construction and Family Housing Appropriated Funds,” at
https://comptroller.defense.gov/Portals/45/documents/fmr/current/03/03_07.pdf.
126 See 10 U.S.C. §2853, “Authorized cost and scope of work variations.”
127 10 U.S.C. § 2853 defines the term “scope of work” to refer to the function, size, or quantity of a facility or item of
complete and useable infrastructure contained in the justification data provided to Congress as part of the request for
authorization of the project, construction, improvement, or acquisition.
128 The law limits the military’s option to scale back the scope of the project to reduce costs. 10 U.S.C. §2853 states:
“Any reduction in scope of work for a military construction project shall not result in a facility or item of infrastructure
that is not complete and useable or does not fully meet the mission requirement contained in the justification data
provided to Congress as part of the request for authorization of the project, construction, improvement, or acquisition.”
125
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Appendix A. Selected Statutes Governing Military Construction and Repair
Authorities
Table A-1. Summary of Selected Military Construction and Repair Authorities
Criteria
Limitations
Congressional Reporting
Requirement
Waiting
Period
Military
Construction
(10 U.S.C. §2802)
Provides funding for military
construction projects, land
acquisitions, and defense
access road projects
Projects costing more than
$9 million are subject to
specific authorization in law
and budgetary authority
through annual budget
cycle
As part of the annual budget
process, the Secretary
concerned must provide
information about the project’s
description, justification and
cost estimate
No waiting
period for
projects
authorized in
law
MILCON appropriations
as specifically authorized
in law
Emergency
Construction
(10 U.S.C. §2803)
Provides funding for projects
vital to the national security or
to the protection of health,
safety, or the quality of the
environment;
and
So urgent that deferral of the
project for inclusion in the
next MILCON authorization
act would be “inconsistent
with national security or the
protection of health, safety, or
environmental quality”
Total obligations under this
authority may not exceed
$50 million for any fiscal
year (for each Secretary
concerned)
Statute requires Secretary
concerned to notify Congress
when using this authority and to
provide a justification for the
project, cost estimate, source of
funding and rational for using
this authority
5 days from
notification
Unobligated funding from
MILCON appropriations
Contingency
Constructione
(10 U.S.C. §2804)
Provides funding if the
Secretary of Defense
determines that deferral of the
project for inclusion in the
next MILCON authorization
act would be “inconsistent
with national security or
national interest”
Subject to unique DOD
approval process involving
Joint Chiefs of Staff
Statute requires the Secretary
of Defense to notify Congress
when using this authority and
to provide a justification, a cost
estimate and explanation for
using this authority
7 days from
notification
MILCON appropriations
as specifically authorized
for the “Contingency
Construction” account
Authorities
CRS-34
Source Of Funding
Authorities
Criteria
Limitations
Unspecified Minor
Constructiona
(10 U.S.C. §2805)
Provides funding for Military
Construction projects if total
cost does not exceed $9
million
If project costs more than
$750,000, statute requires
prior approval from the
Secretary concerned
Congressional Reporting
Requirement
Waiting
Period
If project costs more than $4
million, statute requires
Secretary concerned to notify
Congress, provide justification
and cost estimate
14 days from
notification for
projects with
cost exceeding
notification
threshold
Source Of Funding
MILCON appropriations
as specifically authorized
for Unspecified Minor
Military Construction
accounts
If project costs less than
$4 million, statute allows
Secretary concerned to
use O&M appropriations
Money from Working
Capital Funds may be
used for projects
revitalizing the Defense
Industrial Baseb
Laboratory
Revitalization
(10 U.S.C. §2805(g))
CRS-35
Provides funding for projects
for the purpose of
revitalization and
recapitalization of DOD
laboratories, which includes
facilities conducting “test and
evaluation activities” and
“research, engineering and
development centers”
The maximum amount of
RDT&E funds appropriated
or otherwise made
available for military
construction projects in
any fiscal year for military
construction projects is
$150 million.
Major MILCON projects using
RDT&E funding under this
statute must requested and
justified through the annual
defense budget process.
No waiting
period when
authorized and
appropriated
through annual
defense budget
process
RDT&E appropriations
Authorities
Criteria
Limitations
Laboratory
Revitalization
(10 U.S.C. §2805(d))
Provides funding for minor
military construction projects
(those costing less than $9
million) for the purpose of
revitalization and
recapitalization of DOD
laboratories, which includes
facilities conducting “test and
evaluation activities” and
“research, engineering and
development centers”
If project costs more than
$750,000, statute requires
prior approval from the
Secretary concerned
Provides funding for
architectural and engineering
services, as well as
construction design performed
in connection with MILCON
and family housing projectsc
Funding may not be used
for activities related to
advance planningd
Architectural and
Engineering
Services and
Construction
Design
(10 U.S.C. §2807)
CRS-36
Congressional Reporting
Requirement
Waiting
Period
If project costs more than $4
million, statute requires
Secretary concerned to notify
Congress, provide justification
and cost estimate
14 days from
notification
Source Of Funding
MILCON appropriations
as specifically authorized
for Unspecified Minor
Military Construction
accounts
O&M appropriations, or
amounts appropriated
under 10 U.S.C. §4123g
If services for individual projects
cost more than $1 million,
statute requires Secretary
concerned to notify Congress,
describing the scope of the
project and estimated cost of
services
14 days from
notification for
projects with
cost exceeding
notification
threshold
MILCON appropriations
as specifically authorized
for “Planning & Design”
accounts
Authorities
Criteria
Limitations
Construction
Authority in the
Event of a
Declaration of
War or National
Emergency
(10 U.S.C. §2808)
Provides funding in the event
of a declaration of war, or
declaration of a national
emergency by the President
requiring use of the armed
forces for projects “necessary
to support the use of such
armed forces”
Total obligations under this
authority may not exceed
$500 million for any fiscal
year and may not exceed
$100 million for projects
undertaken within the
United States.
Authority terminates “at
the end of the war or
national emergency”
Congressional Reporting
Requirement
Waiting
Period
Statute requires the Secretary
of Defense to notify Congress
when using this authority and
provide an explanation of “how
each construction project
directly supports the immediate
security, logistical, or shortterm housing and ancillary
supporting facility needs of the
members of the armed forces
used in the national
emergency.”
5 days from
notification
Unobligated funding from
MILCON appropriations
(excluding funds
appropriated for family
housing)
None
O&M appropriations
subject to availability
Source Of Funding
Statute also requires
notification of cost estimates
and information about any
projects that were canceled or
modified to provide funding for
the emergency projects.
Repair of Facilities
(10 U.S.C. §2811)
CRS-37
Provides funding for repairs or
restoration of a real property
facility or system for its
original or designated
functional purpose;
or
Conversion of a real property
facility or system to a new
functional purpose without
increasing its external
dimensions
Statute prohibits
construction of new
facilities or additions to
existing facilities
If project costs more than
$7,500,000, statute
requires prior approval
from the Secretary
concerned
If project costs more than $7.5
million, statute requires
Secretary concerned to notify
Congress regarding the
project’s Justification and total
cost estimate;
If repair costs exceed 75% of
the estimated replacement cost,
notification must include an
explanation of why the facility’s
replacement is not in the best
interest of the Government
Congressional Reporting
Requirement
Waiting
Period
Authorities
Criteria
Limitations
Military
Construction
Projects for
Energy Resilience,
Energy Security,
and Energy
Conservation (10
U.S.C. §2914)
Provides funding for projects
to improve an installation’s
energy resilience or energy
security, or to improve energy
conservation
Obligated funding available
from O&M accounts under
this authority is limited to
$100 million in any fiscal
year.
Statute requires Secretary
seeking to use O&M funds for
this purpose to notify Congress
and provide justification for the
project, cost estimates, the
source of the O&M funds to be
used, and, in the case of a
military construction project for
energy conservation, the most
current projected savings-toinvestment ratio.
7 days from
notification
MILCON appropriations
as specifically authorized
in law under §2802
or
Secretary may use O&M
accounts subject to
Congressional
notification
Military
Installation
Resilience
Projects (10 U.S.C.
§2815)
May be carried out on a
military installation or outside of
a military installation if the
Defense Secretary determines
that the project would
preserve or enhance the
resilience of a military
installation, military facility or
community infrastructure
necessary to maintain or
rapidly reestablish an
installation’s mission-essential
functions
Must be carried out in
accordance with §2802 and
Secretary must provide the
rationale for how the
project would enhance
military installation
resilience; enhance mission
assurance; support mission
critical functions; or
address known
vulnerabilities
or
If the Secretary concerned
seeks to use O&M funding
for a project not previously
authorized in law, the
Secretary concerned must
certify that that waiting for
next MILCON
authorization act would be
inconsistent with national
security or the protection
of health, safety, or
environmental quality
Statute requires the Secretary
of Defense to notify Congress
when using this authority and to
provide a rational for using this
authority
14 days from
notification
MILCON appropriations
as specifically authorized
in law under §2802
or
Secretary may use O&M
accounts subject to
Congressional
notification
CRS-38
If using O&M funding, statute
requires Defense Secretary to
notify Congress and provide
cost estimates, source of
funding and certification that
waiting for next MILCON
authorization act would be
inconsistent with national
security or the protection of
health, safety, or environmental
quality,
Statute also requires the
Secretary of Defense to submit
an annual report on the status
of projectsf
Source Of Funding
Authorities
Congressional Reporting
Requirement
Waiting
Period
Criteria
Limitations
Authority for
certain
construction
projects in
friendly foreign
countries (10
U.S.C. §2817)
Provides funding for
construction projects in
friendly foreign countries at an
air, or sea port of debarkation,
rail or other logistics support
location
Individual projects may not
exceed $15 million and
total obligations under this
authority may not exceed
$200 million in any fiscal
year
For construction projects with a
total cost that exceeds the
amounts authorized for
unspecified minor military
construction projects under
section 2805, this statute
requires the Secretary of
Defense to notify Congress
when using this authority along
with a supporting rationale
30 days from
notification
O&M appropriations
subject to availability
Restoration or
replacement of
damaged or
destroyed
facilities (10 U.S.C.
§2854)
Provides funding for repair,
restore, or replace a facility,
including a family housing
facility, that has been damaged
or destroyed.
Total obligation in O&M
funds under this authority
may not exceed $100
million in any fiscal year.
Statute requires the Secretary
concerned to notify Congress if
the cost of the repair project
exceeds $9 million. Notification
should include cost estimates,
the source of funds for the
project, and of the justification
for carrying out the project
under this section
Waiting period
varies depending
on the type of
funding used
(MILCON vs.
O&M)
Unobligated funding from
MILCON appropriations
or
O&M appropriations
subject to availability
O&M funding may be used if
damage or destruction to the
facility was the result of a
natural disaster or a terrorism
incident
Source Of Funding
Source: Title 10 of the United States Code, Congressional Research Service.
Notes:
a. Under §2805(f), the Secretary concerned may adjust the dollar limitations specified in 10 U.S.C. §2805 (Unspecified minor construction) for unspecified minor
military construction projects inside the United States to reflect the area construction cost index for military construction projects (not to exceed $14M).
b. 10 U.S.C §2208 provides temporary authorization for the use of working capital funds to pay for minor military construction projects that aims to “revitalize or
recapitalize defense industrial base facilities.” The statute defines defense industrial base facilities as “any Defense Department depot, arsenal, shipyard or plant
located within the United States. That provision is scheduled to expire at the end of FY2025, per Sect. 372 of P.L. 117-263.
c. Includes projects undertaken in connection with the authority provided under 10 U.S.C. § 2854 (Restoration or replacement of damaged or destroyed facilities).
d. Funding under this statute provides for project-specific architectural and design work. Activities related to the evaluation of the initial military requirement, known
as advance planning, are funded through O&M accounts. For more information about advance planning, see pages 6 and 14 of this report.
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e.
f.
g.
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Contingency Construction funding is not always included in the annual budget. For example, the conference report (H.Rept. 112-331) accompanying the
Consolidated Appropriations Act, 2012 (P.L. 112-74) listed $10 million for contingency construction, within the Military Construction, Defense-Wide account. See
H.Rept. 112-331, p. 1283. Since 2012, the defense legislation has not included appropriations for contingency construction under 10 U.S.C. §2804.
Statute requires the Secretary of Defense to submit an annual report to the congressional defense committees not later than 90 days after the end of each fiscal
year until December 31, 2025 on the status of the planned and active projects carried out under this section (including completed projects). Reports should include
the title, location, a brief description of the scope of work, the original project cost estimate, and the current working cost estimate, and explanation for how the
project will or has enhanced military installation resilience
10 U.S.C. §4123 provides funding for use at the discretion of the directors of defense laboratories to fund innovation and development programs, to potentially
include construction of infrastructure, in support of the defense laboratories’ military missions.
Military Construction: Authorities and Processes
Appendix B. Example DD Form 1391: Joint Base
Lewis-McChord Barracks.
Included in the figures below is the DD Form 1391 for a $49 million barracks project for Joint
Base Lewis-McChord, which the Army submitted to Congress as a supporting document in its
FY2023 MILCON budget request.
According to the Army, the project “is needed to provide adequate barracks for Soldiers stationed
at Joint Base Lewis-McCord (JBLM). This project is required to meet current Army standards to
provide a safe and secure environment that provides privacy and comfort. Quality barracks are
essential to resilience and quality of life for Soldiers, and an important factor to preserve and
enhance the all-volunteer force.”
The complete DD Form 1391 for this MILCON project consists of three pages and includes cost
estimates, a description of the proposed construction, the Army’s requirements and justifications
for the project, and other supplemental data. The bottom of the document includes details about
the project’s timeline – when the design began, the current status of the design process, and
projected dates for contract award, start date and completion date.
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Military Construction: Authorities and Processes
Figure B-1. Example of DD Form 1391: Joint Base Lewis-McChord Barracks (1 of 3).
Copy of budget justification document submitted to Congress for FY2022
Source: DoD Comptroller’s Office, Department of the Army FY2022 Military Construction Program Budget
Documents.
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Figure B-2. Example of DD Form 1391: Joint Base Lewis-McChord Barracks (1 of 3).
Copy of budget justification document submitted to Congress for FY2022
Source: DoD Comptroller’s Office, Department of the Army FY2022 Military Construction Program Budget
Documents.
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Figure B-3. Example of DD Form 1391: Joint Base Lewis-McChord Barracks (1 of 3).
Copy of budget justification document submitted to Congress for FY2022
Source: DoD Comptroller’s Office, Department of the Army FY2022 Military Construction Program Budget
Documents.
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Author Information
Andrew Tilghman
Analyst in U.S. Defense Infrastructure Policy
Acknowledgments
This report was originally authored by Daniel H. Else, former CRS Specialist in National Defense; and
subsequently updated by Lynn M. Williams, former CRS Specialist in Defense Readiness & Infrastructure;
and G. James Herrera, former CRS Analyst in U.S. Defense Readiness and Infrastructure. It has been
revised and updated several times to reflect current policy, practice, and law.
Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
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under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other
than public understanding of information that has been provided by CRS to Members of Congress in
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copy or otherwise use copyrighted material.
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.