Notice Provisions for United States Citizen Contractor Employee8 Serving with the Armed Forces af the Lmted States in the Field: Tme to Reflect Their Assimilated Status in Government Contracts?

• Author: Major Brian H. Brady
• Pages: 01

Ooer the past t u decades, the Armed Faices of the Umted

States ham reduced thew combat sero~ce suppoe capebili-ties. As a result, gouernment contractors now perform mdi-tory logistics funetrons in the field Increasingly, common. ders must plan for deployment of contractor employees in the field. Unfortunately few commanders and few eontrac. tors understand theu rights and obligations. The author proposes to amend the Defense Federal Acquisition

'Judge Advocate General8 Carps. United Statec Army Present13 assped ai Legal Advisor. Command Operations Review Board. United States Specla1

Course. The Judge AdLoiale Generays School. United States Army, 1994.9;.

Command Judge Advocate. United States Army Forcer Central Command Dhahran. Saudi Arabia, 1993-94, 'ha1 Defense Counsel, Hanau Branch Offiee Reglon VII. United States Army Trial Defense Service. Eederal Republic of Germany, 1992.93, Chief, International and Operal~onal Law, Headquarters. Unmd Stafea Army V

e Insurance Fund,

Regulation Supplement (DFARS) to gibe contractors notice of the rights and obligations of their employees ~n the field The author's position is that gowrnment contractor emploq-ees hold milztarj Status in the field. Therefore, the Armed Forces of the L'nited States must accord contractor employ-ees sim~lairights andpnuleges to those afforded togowrn ment employees and mditarypeisonnel who deplq ~n support of a mrlitoqj mission In this =a>, commanders uill antegrate e~vilian contractor employees mto the total force projection team in the field

I Introduction

A General

International law recogmzes that United States citizen can-tractor employees serving with the Armed Forces of the United States in the field hare military status.1 These employees also assimilate to the Armed Forces ai the L'mted States by operation of modern contract requirements and United States domestic law Unfortunatel) government contract clauses do not clearly define this status 3 Consequently, neither the government's representa-river nor government contractors understand their rights and abhgations under government contracts in the field *

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Additionally, the trend of United States military lopstics doc-trine 1s to rely on greater contractor support m the fie1d.s Likewise, United States government contract clauses fail to reflect this doetnnal trend.6 Consequently, government contractors do not fully appreciate the rights and obligations of their employees who serve with the Armed Forces of the United States in the field 7

This article examines British and United States Armed Forces practices that illustrate the concept of assimilation It illustrates the types of semces that assmdated civilian contractors have his. torically provided to the military. The historical relationship between contractor employees and the armed forces demonstrates that contractor employees hold military status in the field.

Judge Advocate General's Sehaal. United States Army, Charloftesvdle. Vmginia (obaelung that both the armed forces and c~whans lacked rhelr nghfr and oblrgatrona, note char the Desert Srorm Assessmenr Team IDSATi made no parallel finding under 5111 E Contract Lau-the DSAT referred the pmblem of c~vdians to the labor and emplo~menr 1 w arena1 The DS.4T found the fallormga Ciiihan emplayeeIb1 aeeampannng the force are, af COYTQ~legliimaie

targets of enemy attack Additionally, they are subject LO capture by the enemy and rhe reaultlng POW status Far pmtectmn. cnlllan employees needed unlforma. equlpmenf. and, accardlng ID some, ndearmi :cifatmn omltted) DOD D~rect~reaand Semce Reylanona pravded httle guidance to commanders

b Same ewdian emplayeer were confused abour then status under

the law of war Thib confusion existed even though the employees wore desert camavnage umfarma and had protectme gear and weapons liife-tlun omttedird

*See Leon E Salomon. Power Pmpcfian Logiifiea, .Axw Oet 1993, sf 162.

171. xhere the h n y i Deputy Chlef of Staff for Laglatm descnbeb the future of

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advanced Idennficanon and planned aquaition af illabal eorpor& asieti

This arli~le also rev~ews emerging government policies and doctrine concerning United States citizen contractor employees inthe field and demonstrates how the government has institutional. lied the concept of assimilation This article further analyzes Cmted States government practice, m light of Schwnochei L.Aldrzdgee and explains that currenr practice may not only assmi-late contractor employees TO the United States Ani ed Forcea. but also may \est them with veteran statu

The purpose of this article 1s to propose amendments to the DFARS (cantamed at the Appendix) that clanfy the nghts and abhgations of contractor employees m the field This article articulates the historical, doctrinal, and legal bases justifying these amendments. It also traces the many mdma of assimilation which show that contractor employees serving mth the Armed Forces of the United States in the field unqueatmnably possess military status

Finally, this article analyzes the merits of propored DF.4R.9 notice provmons and explains why immediate consideration and implementation of these provisions by the Defense Acquisition Refilatory iDAK Council is essennal This article also analyzes the proposed DFARS notice provisions under cntena established b? the DAR Council,'o and discusses cost-benefits, rule-making impacts. and policy considerations to demonstrate that the DFARS amendments are essential to force projection doctrine

B Defin~tions

cept of assimilation to the armed

derived from many SOUTCBB for the p

in this article This article contendslate to the armed forces ii. (Ir they accompany the armed forces , 2 , the)- serve with the armed forces, and (3) they sen-e in the field

I Assimilation to the Armed Forces-Assimilation id the de facto and de jure status of contractor employees senng hirh the Armed Forces of the United States in the field." The term reflects military status granted to United States citizen contractor emplor-res by operation of either international lair.12 or domestic United

This subpart mill articulate key definitions underlying the con-

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States law,l3 or administrative rule-making authonty,'4 Contractor employees assimilate to the Armed Forces of the United States. under the following conditions:

(1) They perform incident to government contract requir- ing their S ~ T V L C ~ S ; ~ ~

(2) The government requires performance in the field or an a contingency operation where the conditions expose employees ta lass of life or limb a8 a result of hostile enemy activity;l6 and

(3) The government integrates contractor employees into the Armed Forces of the United Statea through unique actions including official accreditation. issuance of urn-forms and equipment, and predeployment training, as a result of domestic law. agency policy, or international law.17 As a result, these employees not only accompany the armed farces but serve with the armed forces in a direct military capacity.

2 Aeeompan>~~ngthe Aimed Farces-This term is inclusive af

all civilians whose presence 1s occasioned by some connection TO the armed forces. They may depend on the armed farces for their employment, life support, or sustenance. The term 1s illustrated by three groups of civilians that have historically accompanied the armed forces: the camp follower; the retamer-to-the camp; and the sutler.18 The term does not mean that a mvilmn has assimilated to the force. A contractor employee must accompany the armed forces a8 a precondition to assimilation.

>'See C I Bill lmproiement Act af 1877 B 401 Pub L ha 95.202. 91 Stet 1433. 1449 lamending 38 U S C 6 106) hereinafter G I Bill Improvement Act1

ng cntena for derermmmg veteran sfsfus for contrac-e armed force8 dunne armed canfl~cr, as folloaa

equivalent afthe hencan post exchange and club iyiternl

In the context of a combat deployment, the term traditionally describes mdniduala "nho accompany the armed forcer without actually being members thereof,'' located in the field or on contingenq operations.lB Hoiuewr, the term includes contractor emplol-888 who assimilate to the United Stater Armed Forces, during peacetime, as members of the "avilian component" under treat>.aO Far example. the terms of the Supplementary Agreement to the North Atlantic Treaty Organization (NATO) Statu of Forces Agreement ISOFAr assimilates "technical experts" icontractor emplo>-eesl to the "cw~lian componentForces of the United States 21

Far the purposes of this article. the dedmtmn includes all Lmted States citizens who perform semices on behalf of the Armed Forces of the Lmred States, identified under terms ofArtides 41A)14' and (5) of the 1949 Geneva Convenbon Relative to the Treatment of Pnsoners of War iPM' Convention of 19491.22 The article shoas that. ~n some instances, contractor employees may no longer fBtrict definition of Articles 4(A)(4l and (51 but may becomeas aux~hanea or volunteers aithm the meaning of Articles 4

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The rhird group compneed the CKLI departments of as the c~vil afficerr and civilian ernplaieei of them thehmi

Id 1OSsls GPW48 duma note 1. art Ih 48 6 U 5 T ai 3320 mernphaiii added

tine Parr1 and uho ar of en, Sfate i\hlrh is not B Parti nsrionali of no? ordmanl! reiiden located

located

This agreement defines technical expelts BJ part of the ci\il~an iamponenf

Technical experts vhaie sewices are required bi a farce and mho m the Federal telrltori erclus~rdj sene that forre exrher ~n an adriaary eapamy ~n ferhmcal matters or for the setting up, ~perafmnor mamte- lance ai eqvlprneni shall be conndered to be, and treated as. nrntharc oitkr C I L L I Z U ~ componmtId iemphasls added

Sea GPW-48. 'upm note 1 6 U 9 T ai 3320

This agreement defines technical expelts BJ part of the ci\il~an iamponenf

Technical experts vhaie sewices are required bi a farce and mho m the Federal telrltori erclus~rdj sene that forre exrher ~n an adriaary eapamy ~n ferhmcal...