Contractors accompanying the force: empowering commanders with emergency change authority.

• Author: Douglas, Karen L.

In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military industrial complex. The potential for the disastrous rise of misplaced power exists and will persist. (1)

Nothing is more important in war than unity of command. (2)

1. INTRODUCTION

   Letters home from the front lines of battle aren't just from soldiers, airmen, seamen or marines anymore. About half the time, they're from employees of Brown and Root, DynCorp and Kroll. Since the close of the Cold War, the United States military has downsized to a fraction of its former manpower. The Department of Defense began to outsource duties formerly performed by military personnel to civilian corporations in the hope of saving money. This, in turn, leaves military battlefield commanders with a military workforce that is sometimes half of their former numbers.

   When everything goes according to plan, the intended result of such outsourcing is more military tooth, with less expensive logistical tail. However, in times of emergency, versatile use of every man counts. Now, military commanders are left with about half of what they need most: command over men.

   Under existing procurement regulations, the only person empowered to direct contract activities is the duly appointed Contracting Officer. Under a new proposed Defense Federal Acquisition Regulation clause, military commanders would be empowered to direct contracting activities during times of dire emergency. This authority would be limited only by the Law of Armed Conflict's (LOAC) constraints on use of civilians in combat. This proposed amendment would "solve the problem of a perceived lack of direct communications between battlefield commanders and civilian contractors," and return to battlefield commanders some of the versatility lost by replacing military positions with civilian contractors.

   This article is intended to explore the proposed emergency battlefield commander contract change authority amendment, and discuss lawful mechanisms of empowering military commanders with contracting control. Further, this article will consider some of the positive and problematic aspects of providing contract change authority to military commanders.

2. PROPOSED DFARS AMENDMENT: EMERGENCY BATTLEFIELD COMMANDER AUTHORITY

   The Defense Federal Acquisition Regulation (DFARS) (4) is currently under review to update its provisions regarding contractors accompanying a deployed force. Among the many proposals being considered are provisions which would require contractors to follow the ranking military commander's orders in times of dire emergency.

   1. The Proposed Emergency Authority Clause--Changes in Emergencies.

      Normally, the Contracting Officer or the Contracting Officer's representative provides direction to the Contractor, and the Contractor provides direction to its employees. However, when the Contractor is accompanying the force outside the United States, if the Contracting Officer or Contracting Officer Representative is not available and emergency action is required because of enemy or terrorist activity or natural disaster that causes an immediate possibility of death or serious injury to contractor personnel or military personnel, the ranking military commander in the immediate area of operations may direct the Contractor or contractor employee to undertake any action so long as those actions do not require the contractor employee to engage in armed conflict with an enemy force.

      The Contractor may submit a request for equitable adjustment for any additional effort required or any loss of contractor-owned equipment occasioned by such direction. (5)

   2. A Brief History of Battlefield Commander Emergency Contract Authority.

      Providing battlefield commanders with contract authority is hardly a new idea, though it hasn't been used since the American Civil War. (6) During the Civil War, Army ordnance regulations allowed "any officer, in circumstances of 'urgent necessity,' to purchase items normally procured by the Ordnance Bureau, and to submit a report explaining the necessity to obtain government reimbursement." (7) These emergency procurement actions were upheld by the United States Court of Claims (8) as a lawful exercise of command authority. At the close of the Civil War, battlefield commander contract authority was completely withdrawn due to limited, but notable, dishonesty amongst a small group of commanders, and the desire to trade the expediency of commander procurements for a more centralized procurement system in order to promote competition. (9)

      This proposed DFARS clause would mark a limited return to emergency battlefield commander authority. The purpose would not be expedient procurement as in the 1860's, but promoting mission accomplishment during emergency conditions. This emergency authority would provide military commanders the opportunity to direct all of their human assets, including contractors, in a life-or-death emergency. So, for example, during circumstances of a natural disaster involving a flood or mudslide, or in circumstances of an armed attack on a military base, food service civilian contractors could be directed to quit making lunch and fill sandbags to fortify the base facilities. Since civilian contractors have been steadily replacing military members for non-combat support positions, the proposed increase in military commanders' authority is quite timely.

3. CONTRACTORS ARE INVADING THE BATTLEFIELD!

   In some form or another, contractors have been on the American battlefield since the American Revolution. (10) General George Washington used civilian wagon drivers to haul military supplies. (11) By the Korean War, contractors were hired by the Department of Defense to stevedore, perform road and rail maintenance, and transport troops and supplies. (12) In Vietnam, contractors moved into providing logistics by providing base construction and operations, water, and ground transportation, fuel, and high-tech system maintenance and support. (13) During the first Gulf War, 9,200 contractors deployed in support of the United States forces, and provided maintenance of high-tech equipment, water, food, construction, and other services. (14) In the Bosnia operation, the ratio of contractors to uniformed United States Army members was almost equal, with 6,000 Army personnel supported by 5,900 civilian contractors. (15) In 1999, during the Kosovo operations, Kellogg, Brown & Root Co. provided $1 billion dollars worth of logistics support for the military. Their contract activities included engineering, construction, base camp operations and maintenance, structure maintenance, transportation services, road repair, vehicle maintenance, equipment maintenance, cargo handling, railhead operation, water production and distribution, food services, laundry operations, power generation, refueling, hazardous materials and environmental services, staging and onward movement operations, fire fighting and mail delivery. (16) By contracting with Kellogg, Brown and Root for these logistical services, the U.S. troop commitment to the Balkan deployments were reduced by an estimated 8,900 troops, (17) at a total cost of $2.2 billion. (18) During the recent military operations in Afghanistan and Iraq, an estimated $8 billion dollars worth of contracts have already been awarded to civilian contractors. (19)

   1. As the Numbers of Contractors and Deployments Go Up, the Number of Soldiers Goes Down.

      The markedly increasing numbers of civilian contractors on the battlefield are the result of the United States military's outsourcing of formerly governmental functions. Outsourcing became a global phenomenon after the election of Margaret Thatcher as Prime Minister of Great Britain. (20) The Taatcher government's program of denationalization and privatization of state industries was considered a resounding success in turning around the British economy. The idea of outsourcing traditional government functions soon spread to other countries. (21) The United States has followed Britain's example, and reduced its military to one third of the soldiers that it maintained during the Cold War peak. (22) Further, since 1989, total U.S. Forces and budgets are down 40% from their levels in 1989. (23) As of January 2000, that 40% translates to a reduction from 111 Combat Brigades into sixty-three.

      America's need for the military did not disappear. In fact, the operations tempo has significantly increased since the Cold War: even prior to the 11 September 2001 War on Terrorism, United States troops were sent on 36 different deployments as compared to ten during the Cold War. (24) The outsourcing and downsizing occurred not because the military was no longer necessary, but as an attempt to economize. The idea behind these massive military personnel cuts was to save money while concentrating the remaining assets on efficiency:

      "[T]he scale and scope of what we're seeing today is unprecedented. Even as, in the nineties, the size of the armed force shrank precipitously, the number of outside contract workers kept growing. By some accounts, half of all defense-related jobs are now done by private employees. Why the change? First, the notion that government is fundamentally inefficient and unproductive has become conventional wisdom. It had always had a certain hold on the American imagination, but it gained strength with the ascendancy of conservatism in the eighties and nineties. Second, Washington fell for the era's biggest business fad: outsourcing. For most of the twentieth century, successful corporations were supposed to look like General Motors: versatile, vertically, huge. But by the nineties, vertical integration had given way to 'core competency': do only what you do best, and pay someone else to do the rest. The Pentagon decided that it should concentrate on its core competency-- 'warfighting'. It's a tidy picture: the Army becomes a lean, mean...