Standard Operating Procedure: Drafting and Routing a Memorandum of Understanding (MOU)

This Standard Operating Procedure (SOU) establishes the authoritative framework for drafting, reviewing, and formalizing a Memorandum of Understanding (MOU) within the Department of the Navy. An MOU is a non-binding agreement between the Navy and an external organization or internal command that documents the intent, responsibilities, and cooperative efforts of the parties involved. Adherence to this process ensures that all agreements are legally sufficient, operationally sound, and compliant with DoD directives and fiscal law.

Section 1: Pre-Drafting Requirements

• Identify Authority: Verify that your command or department has the legal authority to enter into an agreement with the target entity.
• Consult Legal Counsel: Engage the Office of General Counsel (OGC) or the Judge Advocate General (JAG) office early to determine if an MOU is the appropriate instrument (vs. a Memorandum of Agreement or formal Contract).
• Define Scope: Clearly outline the purpose, objectives, and limitations of the partnership to ensure it aligns with the command’s mission.
• Stakeholder Identification: List all primary points of contact (POCs) for the Navy and the external party.

Section 2: Drafting the MOU

• Use Standard Formatting: Utilize the official Department of the Navy Correspondence Manual (SECNAV M-5216.5) standards.
• Structure the Document: Ensure the draft includes the following mandatory sections:
  • Purpose: A concise statement explaining why the agreement exists.
  • Background: Brief context regarding the relationship.
  • Responsibilities: Clearly defined, non-binding bulleted tasks for both parties.
  • Resources: Explicitly state that "this MOU does not commit funds" (to avoid Anti-Deficiency Act violations).
  • Effective Date/Duration: Specify the start date and the expiration/review date (typically not to exceed 5 years).
  • Modifications/Termination: Include a clause allowing for termination with 30-90 days written notice.
• Drafting Prohibitions: Ensure the language remains "non-binding" and avoids promissory phrasing (e.g., use "shall/will" with caution; prioritize "intends to" or "plans to").

Section 3: Review and Routing

• Command Review: Circulate the draft internally through the Chief of Staff, Comptroller, and applicable department heads.
• Legal Sufficiency Review: Submit the draft to the OGC/JAG office for a formal legal review signature.
• Routing Package: Assemble the package with a cover memo, the draft MOU, and a copy of the legal review.
• Signature Acquisition: Obtain the signature of the authorized Command authority.
• External Coordination: Transmit the signed copy to the external party for their countersignature.

Section 4: Finalization and Maintenance

• Distribution: Provide a copy to all internal stakeholders and the Office of Record.
• System Entry: Log the MOU into the command’s tracking database or the Navy’s centralized agreements repository.
• Calendar Tracking: Set a reminder 6 months prior to the expiration date to initiate a review or renewal process.

Pro Tips & Pitfalls

• Pro Tip: Always include a "Severability Clause"—if one portion of the MOU is found to be invalid, the rest of the agreement remains in effect.
• Pro Tip: Keep the MOU separate from financial obligations; if money must change hands, you require a different legal instrument (such as an Interagency Agreement or a Contract).
• Pitfall: Avoid "Mission Creep." If the MOU starts to sound like a contract for goods or services, stop immediately and consult your Contracting Officer.
• Pitfall: Ensure the MOU does not grant the external party any authority over Navy personnel or assets.

Frequently Asked Questions (FAQ)

1. Is an MOU legally binding for the Navy? No. An MOU is a statement of intent. It is not an enforceable contract, and it cannot legally obligate the government to provide funds or commit resources in a binding manner.

2. Can I use a template from another command? You may use existing templates as a starting point for structure, but you must tailor the content to your specific legal and operational environment. Never assume a "copy-paste" agreement is sufficient for your current mission.

3. What happens if the external party fails to meet the MOU terms? Because the MOU is non-binding, you cannot sue for breach of contract. Your primary recourse is to attempt to resolve the issue through administrative communication or to exercise the termination clause to end the partnership.