HC-002: The Hand Sanitizer | Hard Calls

1

The Situation

You are a deployed CCO at a location actively conducting offensive air operations. An E. coli outbreak is moving through the base. The Wing commander wants hand sanitizer everywhere: individual bottles in everyone's living quarters, plus dispensers in the dining facilities and common areas. The purchase request lands on your desk with command emphasis and a short fuse.

Legal and finance both say no. Individual bottles of hand sanitizer are items of personal convenience, and appropriated funds do not buy personal convenience items. They are not being lazy about it either. They offer the textbook compromise: buy large containers, set up refill stations, let people refill their own bottles. That version they will support.

The Wing commander and the Medical group commander both reject the compromise as insufficient. During an active outbreak, shared refill points are themselves contamination points, and coverage that depends on people walking to a station is coverage with holes in it. The medical assessment is blunt: if this spreads, aircrew go down, and sorties stop. So the requirement in front of you is the one thing your two staff advisors say the money cannot buy.

2

The Pressure

Line up the sides. On one side: the Wing commander who owns the mission and the Medical commander who owns the outbreak. On the other: the JAG and the comptroller, the two advisors whose entire job is keeping your name off a fiscal law violation. In the middle: you, deployed, on a clock measured in incubation periods.

"Legal said no" is the safest sentence in contracting. Take the compromise and nobody can ever hang you for it. But you are watching a risk trade happen in real time: the risk that someone later disagrees with your fiscal call, against the risk that an outbreak grounds aircrew in the middle of offensive air operations. The compromise exists, it is defensible on paper, and the two commanders with the facts say it does not stop the problem. Whatever you pick, you are accepting one of those risks, and only one of them stops the flying schedule.

3

The Authorities

Read these before you vote. Legal and finance are standing on real ground here. So is the other side.

The personal expense doctrine. 31 U.S.C. 1301(a) and GAO's Principles of Federal Appropriations Law (the Red Book). Appropriated funds may be used only for their intended purposes, and employees are expected to bear their own personal expenses. Items of personal comfort and convenience default to not payable, a rule GAO has applied since 3 Comp. Gen. 433 (1924). This is the ground legal and finance are standing on, and as a default they are right. Read it →

The common-area line. Standard fiscal law practice draws the compromise exactly where your advisors drew it: sanitizer bought as a disease prevention measure and placed in common areas is a defensible necessary expense, while personal-size bottles issued to individuals read as personal expenses. See, for example, how USDA's fiscal law office answers the exact question. The refill-station offer was not obstruction. It was the book. Read it →

5 U.S.C. 7903, protective clothing and equipment. Appropriations are available for special clothing and equipment for the protection of personnel in the performance of their assigned tasks. GAO reads it through a three-part test: the item is special rather than ordinary furnishing, it protects the employee, and the working circumstances are hazardous. This is the statute that decides whether a bottle of sanitizer is a convenience item or protective equipment. The facts decide which side of that line you are on. Read it →

FAR 1.602-2(c). Contracting officers shall request and consider the advice of specialists in audit, law, engineering, and other fields, as appropriate. Consider. The FAR makes legal an advisor to the CO, not an approval authority over the CO. The decision, and the accountability that comes with it, stays on the warrant. Read it →

4

What's Your Call

One anonymous vote. No login. You see the split after you commit.

Not voting? Skip the vote and show the call. But the vote is the point.

5

The Call

Locked. Make your call above first. This section opens after you vote.

B. Buy the bottles. That is what happened in the real version of this, and it was made as a risk assessment, out loud, on the record.

Start with what legal got right, because they got the default right. Under normal conditions, individual bottles of hand sanitizer are personal convenience items and the refill-station compromise is the textbook answer. If this were flu season at a stateside base, you take the compromise and move on. But fiscal law categories are not static. Somewhere between patient one and the Medical commander's assessment, that bottle stopped being a convenience item and became protective equipment: a special item, protecting personnel, in hazardous working conditions, which is exactly the frame 5 U.S.C. 7903 exists for. The primary beneficiary is not the airman who gets clean hands. It is the government that keeps its aircrew mission capable in the middle of offensive air operations.

Then weigh the actual risks, because that is the job. On one side: the risk that a fiscal law reviewer later disagrees with your read. On the other: the risk that the outbreak spreads, pilots go down, and the flying schedule stops during combat operations. Those are not the same size. One of them is somebody disagreeing with you. The other one is stoppage.

Mechanically, it went like this. Finance was told: if you are authorized to fund hand sanitizer, I will buy hand sanitizer. They certified the funds, which means the funding decision carried its own share of the risk. Legal advised against it, and the FAR is clear about what that advice is: something the CO must request and consider. It was considered. It was not agreed with. The file documented the outbreak, the two commanders' determinations, and the reasoning. That is the CO doing exactly what the warrant exists for: taking the decision, owning it by name, and being able to defend it later.

Option A was the safe call for you and the wrong call for the mission, and it hides behind advisors who do not own the outcome. Option C is a decision to make someone else decide, at a location where the relevant experts on the mission and the pathogen were both already in the room. Deployed contracting exists because someone has to be able to act at the speed of the problem.

One caveat, and it applies to every Hard Call on this site. In contracting, the target always moves. This call does not mean you can always buy sanitizer, or that legal's default is wrong, or that non-concurring with your advisors is a habit to build. It depends on the specifics: the outbreak, the mission, the assessment, the documentation. Nothing on this page translates to every requirement, ever. Make the call on the facts in front of you. Some of you will agree with mine and some will not, and that is exactly why this page exists. Take the floor below.

6

The Floor

Disagree with the call? Good. Make your case. Sign in with GitHub to post. Same rule as always: sanitized examples only. No CUI, no PII, no source selection information, no live acquisition details.