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DAOD 7014-1, Memoranda of Understanding Development

Table of Contents

  1. Introduction
  2. Definitions
  3. Operating Principles
  4. Initiation Phase
  5. Preparation Phase
  6. Completion Phase
  7. Consequences
  8. Responsibilities
  9. References

1. Introduction

Date of Issue: 1998-03-31

Date of Last Modification: 2014-02-03

Application: This DAOD is a directive that applies to employees of the Department of National Defence (DND employees) and an order that applies to officers and non-commissioned members of the Canadian Armed Forces (CAF members).

Supersession: CFAO 59-5, Memoranda of Understanding

Approval Authority: Judge Advocate General (JAG)

Enquiries: National Defence Memoranda of Understanding Coordinator (NDMOUC)

2. Definitions

domestic memorandum of understanding (protocole d'entente national)

A memorandum of understanding with another federal government department, a Crown corporation or agency, province, territory or municipality or, on an exceptional basis, a non-government organization, an industry association or a commercial entity within Canada. (Defence Terminology Bank record number 43050)

international memorandum of understanding (protocole d'entente international)

A memorandum of understanding with a foreign armed force, military alliance or command within an alliance, a department or ministry of a foreign government, an international organization or, on an exceptional basis, an international non-government organization, a foreign industry association or a foreign commercial entity.

Note – Examples of participants in an international MOU include the United Nations, North Atlantic Treaty Organization and North American Aerospace Defence Command. (Defence Terminology Bank record number 43116)

memorandum of understanding (MOU) (protocole d'entente (PE))

A written, approved, non-contractual, non-legally binding arrangement that may be developed at any level within the DND and the CAF, by which the DND or the CAF and other participants external to the DND and the CAF decide to cooperate in a project, program or similar undertaking. (Defence Terminology Bank record number 43137)

3. Operating Principles

Staffing of Related Documents

3.1 Amendments and annexes to an MOU and other related documents such as implementing arrangements, supplementary arrangements, technical arrangements or any other similar documents, whether they are stand-alone arrangements or created under the terms of an existing MOU, are subject to the staffing provisions applicable to an MOU as provided for in this DAOD.

MOU Participants

3.2 When the DND concludes an MOU, it is in the name of the Minister of National Defence (MND) or the DND. When the CAF concludes an MOU, it is in the name of the Chief of the Defence Staff (CDS). If the MOU is with a foreign government, that participant must be described as being represented by the minister, ministry, department or armed forces of that state.

Advice and Consultations

3.3 Legal, financial and acquisition authority advice must be obtained by the DND or CAF MOU office of primary interest (OPI) during the MOU initiation phase. Additionally, consultations with subject-matter legal advisors and the NDMOUC may occur during the preparation phase. During the completion phase, the formal MOU review process must be carried out, including review by the NDMOUC as well as the finance, security and legal advisors. All reviews must be completed before any MOU is approved.

Recordkeeping

3.4 For all MOUs having financial implications, records must be maintained to ensure that there is an audit trail of the authorization for and use of the MOU.

MOUs Which May Result in the Acquisition of Goods or Services

3.5 While an MOU is the formalization of a cooperative working arrangement, it is not an authority document nor a procurement or contracting instrument. If activities agreed upon by the MOU participants result in the DND or the CAF being required to make financial payments or barter exchanges (e.g. replacement in-kind, equal value exchange or a combination of same), that result in the acquisition of goods or services, the DND or CAF MOU OPI must consult with the appropriate legal and financial advisors within their level one (L1) advisor organization.

3.6 When an MOU will result in the acquisition of goods or services, the DND or CF MOU OPI must follow the appropriate guidance in either the Procurement Administration Manual or Project Approval Directive (DAP), or the applicable Financial Administration Manual chapters, early in the MOU initiation process to determine the appropriate financial, contracting, and applicable project authorities and approvals that must be sought, dependent on the scope of activity.

3.7 In the acquisition of any goods or services, the DND or CAF MOU OPI must ensure compliance with all applicable federal laws and government policies, and applicable Treasury Board policies and directives, including those listed in the References section of this DAOD.

Mutual Logistics Support Arrangements (MLSAs)

3.8 MLSAs are highly flexible international MOUs designed to facilitate the reciprocal provision of logistics support, supplies and services between cooperating defence forces. DND or CAF MOU OPIs who anticipate developing an MLSA must be aware of the Interim Policy Direction – Mutual Logistics Support Arrangements.

Negotiating MOUs

3.9 Because other participants to an MOU are guided by their own policies, DND or CAF MOU OPIs negotiate within the limits of federal laws and government policies, to achieve an arrangement satisfactory to all participants.

3.10 For recordkeeping purposes, DND and CAF MOU OPIs must report the status of all MOUs to the NDMOUC on an annual basis.

Coordination and Consultation on International MOUs

3.11 The NDMOUC must coordinate with the Director International and Operational Law (DIOL) in the Office of the JAG regarding consultation with the Department of Foreign Affairs, Trade and Development (DFATD) on international MOUs.

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4. Initiation Phase

Process

4.1 The following table describes the MOU initiation phase. The appropriate legal advisor must be consulted by the DND or CAF MOU OPI before moving on to the MOU preparation phase (see section 5).

Who does it What happens

The DND or CAF MOU OPI
  • Identify the need to formalize an arrangement;
  • Identify the aim and the scope of the foreseen arrangement;
  • Consult with the appropriate legal advisor to obtain confirmation that an MOU is the appropriate instrument to achieve the desired goal;
  • Consult with the NDMOUC to confirm whether or not a similar MOU is already in existence, obtain a relevant template and MOU staffing process information;
  • Consult their L1 advisor organization chief of staff (COS) and comptroller to confirm resource allocation (source and sufficient level of funding) as well as confirmation of recovery or payment mechanism with the Director Corporate Submissions and Financial Arrangements (DCSFA);
  • Determine the security implications of the MOU and ensure that they are addressed adequately in the MOU;
  • Consult DCSFA to confirm financial authority and tax requirements;
  • Consult with the appropriate legal advisor and any other requisite authorities, such as the Director Materiel Policy and Procedures (DMPP), to determine whether there are any acquisition of goods or services implications;
  • For MOUs which may result in the acquisition of goods or services, see paragraphs 3.6 to 3.8; and
  • Following consultation with the above organizations, the OPI may initiate the drafting of the MOU with the external participant or participants.

The appropriate legal advisor
  • Ensure that an MOU is the appropriate instrument to achieve the desired goal.

The NDMOUC
  • Establish whether an arrangement already exists between the participants that may accomplish what needs to be done, such as a mutual logistics support MOU between DND and the United States Department of Defense;
  • Provide guidance including, if required, a copy of the Memoranda of Understanding (MOU) Writing Guidelines; and
  • Provide suitable examples of similar existing MOUs.

5. Preparation Phase

Document Structure

5.1 MOUs are structured in a prescribed way as set out in the following table. This structure must be followed when preparing an MOU. Every MOU must contain the sections designated in the table below as "mandatory". Sections designated as "optional" are included only if required. The following table shows the sequence of sections in an MOU and the criterion for including each section.

Note – For specific instructions on how to write an MOU, see Memoranda of Understanding (MOU) Writing Guidelines listed in the References section.

Sequence Heading Requirement

1

Title Page
  • Mandatory for domestic MOUs.
  • Optional for international MOUs.

Note – For international MOUs, the title should be one continuous line or lines on the first page of the document. Additionally, it should not include "As Represented By …" as this will be reflected in the introduction paragraph or paragraphs.

2

Table of Contents
  • Optional

Note – May be used if there are many pages.

3

Introduction
  • Mandatory

4

Status of Arrangement
  • Optional

Note – Use whenever possible to ensure:

  • clarity regarding the position of the DND or the CAF that the MOU is not legally binding;
  • that any potential procurement is carried out in accordance with applicable federal laws and government policies; and
  • the requisite financial authorities are obtained.

5

Definitions
  • Optional

Note – Use if there are many abbreviations, acronyms or specialized terminology, or to ensure that the participants have the same understanding of the terminology.

6

Objectives and Scope
  • Mandatory

7

Organization and Management
  • Optional

8

Provisions Governing Contracting
  • Optional

9

Work-Sharing
  • Optional

10

Financial Arrangements
  • Mandatory and must include:
    • a financial framework;
    • a funding arrangement; and
    • financial and tax reconciliation, and review and controls.

11

Taxes, Customs Duties and Similar Charges
  • Optional

12

Disclosure and Use of Information
  • Optional

13

Claims
  • Optional

14

Status of Personnel/Jurisdiction
  • Mandatory when dealing with an MOU involving DND or CAF personnel visiting or assigned to foreign states or personnel from states designated, or not, under the Visiting Forces Act.
  • Optional otherwise.

15

Sales and Transfers to Third Parties
  • Optional

16

Quality Assurance
  • Mandatory when dealing with an MOU involving the acquisition of goods or services.
  • Optional otherwise.

17

Project Equipment
  • Optional

18

Logistic Support
  • Optional

19

Security
  • Optional

20

Access to Establishments
  • Optional

21

Inclusion of Additional Participants
  • Optional

22

Differences in Interpretation and Application
  • Mandatory

23

Amendment
  • Mandatory

24

Duration, Withdrawal, Renewal and Termination
  • Mandatory

25

Coming Into Effect, Date and Signature
  • Mandatory

6. Completion Phase

Overview

6.1 The MOU development process concludes with the completion phase. The completion phase consists of the following:

  1. review process;
  2. approval; and
  3. distribution.

Review Process

6.2 The following table outlines the involvement of various organizations and individuals during the formal review of preliminary and final draft MOUs:

MOU Version Who Function Performed

A preliminary draft MOU

DND or CAF MOU OPI
  • Ensure that all stakeholders have been consulted and the MOU has been:
    • drafted in accordance with the Memoranda of Understanding (MOU) Writing Guidelines; or
    • if the MOU was drafted by an external participant, reviewed and amended as necessary by DND or CAF MOU OPI in accordance with the Memoranda of Understanding (MOU) Writing Guidelines;
  • Ensure all necessary internal reviews are carried out. Example: if an OPI in the Vice Chief of the Defence Staff (VCDS) organization is preparing an MOU dealing with out-of-Canada secondment, consultation with the Chief of Military Personnel will be required. Other officials will be consulted as appropriate, including the COS or comptroller of the L1 advisor organization of the OPI, as well as the responsible budget manager; and
  • Send the final draft of the MOU to the NDMOUC to undergo the formal MOU review process.

Note 1 – If MOU approval authority has to be delegated, contact the NDMOUC for a delegation letter template to prepare and include with review request.

Note 2 – If the MOU is to be approved by MND, Deputy Minister or CDS, contact the NDMOUC to obtain administrative instruction for preparation of a requisite pre-approval package to be included with the review submission.

A final draft MOU

NDMOUC
  • Allocate an identification number and record in DND MOU database;
  • Review the MOU to ensure that it conforms to the requirements set out in this DAOD and ensures legally-binding language is not used, proper formatting and incorporation of mandatory headings and provision texts with a goal of ensuring the document remains a non-legally binding instrument;
  • Coordinate the other mandatory reviews, including financial, security and final legal advisor review and any other reviews determined necessary; and
  • Liaise with DIOL where consultation with the Trade Treaty Law Section of DFATD is necessary.

DCSFA
  • Review (coordinated by the NDMOUC).

Director of Defence Security (DDS)
  • Review (coordinated by the NDMOUC).

Assistant Deputy Minister (Materiel) (ADM(Mat))
  • Review (coordinated by the NDMOUC) all international and domestic MOUs, to:
    • identifiy MOUs that reflect the intent or potential to acquire goods or services; and
    • identify MOUs with intellectual property (IP) implications.

A final draft MOU with real property implications

Director General Real Property (DGRP)
  • Review (coordinated by the NDMOUC).

The final draft MOU (with all other mandatory reviews completed)

The appropriate legal advisor
  • Review (coordinated by the NDMOUC).

The final signature-ready draft MOU

DND or CAF MOU OPI
  • Consider and incorporate review comments received from mandatory review authorities.

Approval

6.3 When the review process is completed, the appropriate authority will approve the MOU. The Authority Table at paragraph 5.1 in DAOD 7014-0, Memoranda of Understanding, indicates those persons in the DND and CAF who have authority to approve an MOU on behalf of the DND or the CAF.

Distribution

6.4 The OPI must send to:

  1. the NDMOUC:
    1. the original DND or CAF MOU with the signatures of all participants and a scanned electronic copy of same; and
    2. the original delegation of authority letter, if applicable, and a scanned electronic copy of same;
  2. the external participant or participants, an original MOU with the signatures of all participants; and
  3. each office of collateral interest, a paper copy of an original MOU with signatures of all participants.

7. Consequences

Consequences of Non-Compliance

7.1 Non-compliance with this DAOD may have consequences for both the DND and the CAF as institutions, and for DND employees and CAF members as individuals. Suspected non-compliance will be investigated. The nature and severity of the consequences resulting from actual
non-compliance will be commensurate with the circumstances of the non-compliance. Consequences of non-compliance may include one or more of the following:

  1. the ordering of the completion of appropriate learning, training or professional development;
  2. the entering of observations in individual performance evaluations;
  3. increased reporting and performance monitoring;
  4. the liability of Her Majesty in right of Canada;
  5. the application of specific consequences as set out in applicable laws, codes of conduct, and DND and CAF policies and instructions; and
  6. other administrative or disciplinary action, or both.

Note – In respect of the compliance of DND employees, see the Treasury Board Framework for the Management of Compliance for additional information.

8. Responsibilities

Responsibility Table

8.1 The following table identifies the responsibilities associated with this DAOD:

The ... is or are responsible for ...
  • VCDS;
  • ADMs; and
  • environmental chiefs of staff (ECSs)
  • prior to approving an MOU:
    • confirming they have obtained all requisite authorities pursuant to any applicable federal laws or government policies; and
    • confirming the completion of all mandatory reviews.
  • ADM(Mat)
  • reviewing all draft international and domestic MOU to identify those that reflect the intent or the potential to acquire goods or services;
  • ensuring that any acquisition follows approved processes and that the appropriate financial, contracting and applicable project authorities have been obtained;
  • coordinating any necessary engagement with other government departments regarding their accountabilities and responsibilities (e.g. with TBS and PWGSC for procurement); and
  • reviewing draft MOUs for IP implications.
  • Commander (Comd) Canadian Joint Operations Command;
  • Comd Canadian Special Operations Forces Command; and
  • Comd Canadian Forces Intelligence Command
  • prior to approving an MOU:
    • confirming they have obtained all requisite authorities pursuant to any applicable federal laws or government policies; and
    • confirming the completion of all mandatory reviews.
  • L1 advisor organization COS and comptroller
  • confirming source of funding;
  • confirming sufficient level of funding; and
  • confirming recovery and payment mechanism with DCSFA.
  • DGRP
  • reviewing draft MOUs with real property implications.
  • comd of a Canadian Defence Liaison Staff
  • prior to approving an MOU, confirming:
    • they have obtained all requisite authorities pursuant to any applicable federal laws or government policies; and
    • they have been delegated authority to approve an MOU by the VCDS, an ADM or an ECS, as applicable.
  • DCSFA
  • reviewing draft MOUs to ensure:
    • financial and tax provisions are used in compliance with applicable federal laws and government policies; and
    • accountability and financial control are established over each project and activity carried out under the MOU.

Note – It is only the local comptroller of the DND or CAF MOU OPI who can confirm the allocation of requisite financial resources.
  • DDS
  • reviewing and amending draft MOUs for security implications.
  • responsible budget managers (minimum rank of lieutenant-colonel or civilian equivalent)
  • confirming they have obtained all requisite authorities pursuant to any applicable federal laws and government policies prior to approving an MOU.
  • NDMOUC
  • monitoring the implementation of the DAOD 7014 series;
  • advising the JAG on amendments to the DAOD 7014 series as required;
  • controlling the inventory of DND and CAF MOUs;
  • reviewing all final draft MOUs to ensure compliance with the DAOD 7014 series;
  • establishing instructions to implement the DAOD 7014 series; and
  • notifying the JAG of any non-compliance with this DAOD.
  • appropriate legal advisor

Note – If the appropriate legal advisor is unknown, the OPI should contact the NDMOUC who maintains a master client and subject-matter list.
  • confirming the proposed objectives and activities are within the authority of the MND and the mandates of the DND or the CAF;
  • advising the DND or CAF MOU OPI whether or not an MOU is the appropriate instrument to achieve desired goal;
  • reviewing draft MOUs with a goal of ensuring they are not legally binding; and
  • providing legal advice on legal issues or complications arising as a result of the content of a draft MOU.
  • DND or CAF MOU OPI
  • preparing a signature-ready draft MOU; and
  • obtaining approval of all participants.

9. References

Acts, Regulations, Central Agency Policies and Policy DAOD

Other References

  • NATO Document AC/313, Guidelines and Sample Provisions for Memoranda of Understanding (available in English only)
  • Interim Policy Direction – Mutual Logistics Support Arrangements, ADM(Mat)
  • A-PP-005-000/AG-002, Procurement Administration Manual (PAM), ADM(Mat)
  • B-GS-055-000/AG-001, Provision of Services Manual, ADM(Fin CS)
  • Financial Administration Manual, ADM(Fin CS)
  • Memoranda of Understanding (MoU) Writing Guidelines, JAG
  • Project Approval Directive (PAD), VCDS

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