Published: February 09, 2004

DoD Drafting New Rules for Wartime Contractors

By DAVID PHINNEY

Defense Department officials are drafting a new rulebook for contractors working in hostile environments.

When completed, it is expected to resemble regulations completed in November by the Army.

Those new rules were largely embraced by the Professional Services Council (PSC), a leading contractor group, but the council also called for “a uniform, Department-wide, coverage on common issues affecting contractors accompanying the force.”

PSC, based in Arlington, Va., represents 155 companies doing business with the Pentagon and the government.

The Army has always been a step ahead of the other services and the Joint Staff in crafting such regulations because its troops are increasingly reliant on private companies for logistical and technical support. The Army’s extensive operations in Iraq and Afghanistan have hastened the need to update previous regulations that define roles and govern the relationship between contractors and the military.

The Army’s deputy assistant secretary for policy and procurement found “urgent and compelling reasons” to publish the rule before the public could comment, according to the Nov. 28 Federal Register notice soliciting comments on the new interim rulebook. The comment period closed Jan. 28.

The Army revised its regulations to lay out clearer guidelines about chain of command and contract requirements and clear up confusion that contracting officers and contractors have found in earlier guidance, according to one source familiar with the new rulebook.

The new regulations, which build upon regulations last updated in 1999, allow contractors to carry weapons when authorized by the combatant commander and require the contractor to recognize in writing that working in conflict zones can be risky business — and that they accept the risk.

Other requirements insist that contractors and contractor personnel:

• Be familiar with host nation laws, international treaties and licensing requirements.

• Comply with combatant commander’s orders relating to military operations, force protection and health and safety; and replace any personnel who fail to comply with these provisions.

• Submit information on contractor employees for entry into military databases.

• Make sure all required security and background checks are completed.

• Meet all medical screening and requirements.

• Have a plan for replacing employees no longer available for work in the war zone for any reason, including injury or death.

Contractor employees are not allowed to wear military clothing unless they have a written waiver from the Army, with the exception of equipment needed for safety, such as biological or chemical protective gear.

Also, they cannot carry firearms in operational areas unless issued by the combatant command with the consent of contract employees. The commander may require training in use of weapons and other predeployment training.

Officially called “contractors accompanying the force,” Halliburton’s KBR may be the most well known of businesses on the battlefield, providing installation maintenance, transportation, laundry and other services in Iraq, the Balkans and elsewhere, and also recent multimillion dollar billing problems for food service and gasoline. But there are dozens of other prominent firms also on the ground in Iraq. These companies provide armed security, military training, transportation, medical assistance, and a host of other services relating to troop support and reconstruction.

The challenge in bringing contractors into a hostile environment has always been in maintaining a strong wall between contractor and war fighter so that civilians are not viewed as combatants or mercenaries, said Randy King, Army program manager for contractors accompanying the force and deputy chief of staff for logistics.

“The Geneva Conventions talk about ‘civilians accompanying the force,’ ” King told Federal Times last year. “In that capacity, contractors have the same rights in case of capture.”

In its comments on the new Army rules, PSC encourages contracting officers to specify in contract solicitations what sort of support the government will provide to contractors and the support that contractors will be expected to provide on their own in combat areas.

“These support elements have a direct and significant impact on the substantive bid, on the pricing, and on contract performance,” said Alan Chvotkin, PSC senior vice president, in a Jan. 27 letter to the Army’s procurement policy and support office.

Additionally, PSC finds fault in how the chain of command between the Army and government contracting officers is established and suggests that more clarity be drawn about when a commanding officer’s orders take precedence.

“While we expect these areas to be very limited, any such direction could have enormous cost, schedule and performance impacts on the contractor’s ability to execute the contract,” PSC said in its comments.

 

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