76 FR 49650 – Private Security Contractors (PSCs) Operating in Contingency Operations, Combat Operations or Other Significant Military Operations
76 FR 49650 – Private Security Contractors (PSCs) Operating in Contingency Operations, Combat Operations or Other Significant Military Operations
US Gov Printing Office (here to download) August 11, 2011
This Rule establishes policy, assigns responsibilities and provides procedures for the regulation of the selection, accountability, training, equipping, and conduct of personnel performing private security functions under a covered contract during contingency operations, combat operations or other significant military operations. It also assigns responsibilities and establishes procedures for incident reporting, use of and accountability for equipment, rules for the use of force, and a process for administrative action or the removal, as appropriate, of PSCs and PSC personnel. For the Department of Defense, this Rule supplements DoD Instruction 3020.41, “Contractor Personnel Authorized to Accompany the U.S. Armed Forces,” which provides guidance for all DoD contractors operating in contingency operations. This Rule was published as an Interim Final Rule on July 17, 2009 because there was insufficient policy and guidance regulating the actions of DoD and other governmental PSCs and their movements in operational areas. This Rule ensures compliance with laws and regulations pertaining to Inherently Governmental functions, and ensures proper performance by armed contractors.
Correcting Over Reliance on Contractors in Contingency Operations
February 24, 2011
Second Interim Report to Congress
Recommendations for Legislation and Policy Changes
Army procurement officials failed to properly manage a key support contract for contingency operations in Iraq and Afghanistan, awarding millions of dollars of work without competition and disclosing bidders’ proprietary information without their knowledge or consent, according to a watchdog’s new report.
The report by the Defense Department inspector general found scores of internal control weaknesses associated with the Army Sustainment Command’s management of a support contract for the massive Logistics Civil Augmentation Program, which provides a host of services and in-theatre assistance to soldiers. Three firms — DynCorp International, Fluor Corp. and KBR — compete for task orders on the LOGCAP IV contract.
Serco Inc. of Vienna, Va., in February 2007 won a $117 million support contract to help the Army plan and estimate costs of task orders on the LOGCAP IV contract. But, according to auditors, Army officials allowed the scope of Serco’s contract to expand to non-LOGCAP requirements without taking the proper steps to ensure competition and prevent conflicts of interest.
On April 16 the Department of Defense Inspector General released a report that nobody has been talking about. Allow me to be the first. Perhaps we should subtitle it the crime that dare not speak its name, as it deals with a topic that most private military contractors (PMC) generally don’t talk about publicly.
The title of the report is “Efforts to Prevent Sexual Assault/Harassment Involving DOD Contractors During Contingency Operations.” .
My first thought is how is it that some contractors can’t seem to keep it in their pants? This is an issue that seems to keep happening over the years; from the days when DynCorp contractors were involved in a sex trafficking scandal in Bosnia when employees and supervisors engaged in sex with 12 to 15 year old children, and sold them to each other as slaves to the gang-rape of Jamie Leigh Jones a former KBR employee who claimed that seven KBR employees drugged and gang-raped her on July 28, 2005 at Camp Hope, Baghdad, Iraq.
For those who like to dismiss such things as isolated occurrences just head on over to the “Rape, Hazing, Discrimination & Harassment” section of Ms, Sparky’s blog and you will be promptly disabused of such a notion.
In fact the situation is serious enough that the sexual assault of employees of U.S. military contractors working in Iraq and Afghanistan will be tracked by the Pentagon under a system it is setting up.
Evidently the fact that the Uniform Code of Military Justice (UCMJ) declares that sexual assault committed by the Armed Forces and DOD civilians and contractors accompanying Armed Forces in contingency operations is a criminal offense that is punishable by court-martial is not enough to keep assaults from happening.
The IG report reviewed contracts that support Operations Enduring Freedom and Iraqi Freedom for language in clauses that address the prevention of sexual assault or harassment of or by contractor personnel. It also determined whether DOD and/or DOD contractors provided sexual assault/harassment prevention and response training to contractor employees prior to deployment.
What it found was:
That of the 10 DOD contractors reviewed, 8 did not have policies or training requirements for sexual assault prevention and response. This condition occurred because contractual requirements were not established to ensure that contractors were aware of DOD’s definition of sexual assault or that contractors should report sexual assault complaints to Military law enforcement during contingency operations. In addition, sexual assault prevention and response policy was not applied to contractors and contractors were not required to complete such training as part of theater-specific individual requirements training. The Army Deputy Chief of Staff, G-3/5/7, and Air Force contracting officers did not provide adequate oversight of contractor deployment training for sexual assault prevention and response. This condition occurred because the Kellogg, Brown, and Root Services, Inc. Continental United States Replacement Center (CRC) and Fluor Corporation CRC operations were inappropriately approved, despite the contractors’ sexual assault awareness and reporting training not meeting the minimum
training requirements. Further, contractor employees were processed through pre-deployment sites without ensuring that sexual assault prevention and response training was completed.
One can’t help wondering what the world is coming to when men have to go through training to understand that no means no.
Indeed, the report found that most contractors had problems even defining sexual assault. The report noted:
We determined that 8 of 10 contractors reviewed did not establish an adequate corporate definition of sexual assault or promote awareness to contractor employees assigned to DOD projects in Iraq and Afghanistan. Specifically, five contractors misclassified sexual assault, a violent felony, as an act of sexual harassment, a civil offense, which is reported internally within the companies instead of externally to Military law enforcement; one contractor developed a definition that was inconsistent with DOD’s definition and established internal company reporting procedures; and the remaining two contractors did not provide any definition of sexual assault. The remaining 2 of 10 contractors developed a definition of sexual assault that was consistent with DOD’s definition, but only 1 of the 2 contractors established external reporting to Military law enforcement.
Sexual assault is not just a problem for private contractors; it also is a problem for regular military forces. On February 5, 2004, the Secretary of Defense issued a memorandum, “Department of Defense Care for Victims of Sexual Assaults,” that expressed concern with the increasing numbers of reports alleging sexual assaults involving Service members deployed to Iraq and Kuwait and directed a review of how DOD handled the treatment and care for victims of sexual assault in theater. On February 10, 2004, the Under Secretary of Defense for Personnel and Readiness [USD(P&R)] directed the Deputy Assistant Secretary of Defense for Force Health, Protection, and Readiness to establish and lead a task force to review the reporting of sexual assaults and consider the necessity of training for Service members. In April 2004, the task force issued the “Task Force Report on Care for Victims of Sexual Assault,” which found that DOD did not have a policy or program aimed at preventing sexual assault, particularly in joint combat environments.
The companies that the report looked at were. AECOM; Environmental Chemical Corporation (ECC); Fluor Corporation (Fluor); ITT Corporation, Systems Division (ITT); Innovative Technical Solutions, Inc.(ITSI); Kellogg, Brown, and Root Services, Inc. (KBR); L-3 Communications; Parsons Corporation (Parsons); Readiness Management Support, LC (RMS); and Tetra Tech, Inc.
These ten contractors were selected based on the following criteria: U.S.-based companies; contracting actions awarded in FY 2006 and FY 2007; and combined FY 2006 and FY 2007 contracting actions equal to or exceeding $250 million.
As is often the case with PMC issues the government shares the blame for the problem. The report noted:
Although the 10 DOD contractors reviewed have policies and training requirements in place to comply with the intent of Equal Employment Opportunity laws regarding sexual harassment, the contractors did not establish similar policies and training requirements for sexual assault awareness, prevention, and reporting for DOD contractor employees. This occurred because the Under Secretary of Defense for Acquisition, Technology, and Logistics [USD(AT&L)] did not establish requirements in DOD contracts to ensure: • contractors are made aware of the Uniform Code of Military Justice (UCMJ) definition of sexual assault; and
• contractor employees report sexual assault complaints to Military law enforcement during contingency operations in Iraq and Afghanistan.
In addition, the Under Secretary of Defense for Personnel and Readiness [USD(P&R)]:
• established sexual assault prevention, reporting, and response policies that excluded DOD contractors; and
• did not ensure that combatant commanders established minimum pre-deployment training requirements to include sexual assault prevention and response training for contractors who accompany U.S. Armed Forces in contingency operations.
As a result, contractor employees who were alleged victims or witnesses may not have known how to report sexual assault crimes to the appropriate Military law enforcement officials while in Operations Enduring Freedom (OEF) and Iraqi Freedom (OIF) areas of operation. Additionally, DOD contractors, a supporting component of the DOD total force, may have been unaware of the severity of sexual assault as a criminal offense under the UCMJ, thereby increasing the risk of sexual assault occurrences that threaten contractor productivity in support of DOD contingency operations.
In terms of policies the report found:
We determined that KBR and Parsons were the only two contractors that developed company policies for their employees that addressed sexual assault prevention and response, but that the KBR and Parsons policies were limited. The KBR sexual assault policy, issued in October 2007, applied to only KBR employees who supported the Logistics Civil Augmentation Program (LOGCAP) and excluded KBR employees performing work on other contracts supporting contingency operations; provided a definition of sexual assault that considered any nonconsensual sexual act or contact to be sexual assault; and established reporting procedures for its LOGCAP employees to report sexual assault crimes internally to KBR human resources representatives, employee relations representatives, its ethics hotline, or legal counsel, and did not mention local law enforcement. Parsons’ workplace violence policy prohibited physical assault, which included sexual assault; however, the Parsons’ policy was inadequate because it did not provide the defining elements of sexual assault. Additionally, the Parsons’ policy provided internal company reporting procedures for its employees to contact Parsons supervisors, security, and emergency hotline, and did not mention local law enforcement.
In terms of training the report found:
RMS and Fluor were the only two DOD contractors that developed and implemented sexual assault prevention and response training that classified sexual assault as a crime characterized by nonconsensual and threatening physical contact causing bodily harm, including rape. The RMS training module, implemented in June 2007, was the only sexual assault training that appropriately instructed employees to report sexual assault crimes to law enforcement authorities as well as to internal company management, human resources managers, and the RMS ethics hotline. However, the Fluor sexual assault prevention and response training, implemented in June 2009, inappropriately instructed employees to report sexual assault crimes internally to Fluor supervisors and managers.
The IG report recommends that the Under Secretary of Defense for Acquisition, Technology, and Logistics develop contractual requirements to ensure that DOD contractors are aware of the DOD definition of sexual assault and require contractors to report sexual assaults to Military law enforcement.
Of course, there are many private military contractors working for places other than the Defense Department. One can’t fault the IG report for that; it can only address its own department. But one hopes that someone in government will ensure the recommendations apply government wide and not just to Pentagon contractors.
Follow David Isenberg on Twitter: www.twitter.com/vanidan
Let’s concede the obvious; the U.S. military cannot function, either in peacetime or wartime, without heavy dependence on private contractors.
Let’s also acknowledge another fact; namely, that this situation is not going to change anytime soon.
So rather than engage in futile debates about getting rid of such dependence we should be focusing on solving problems in the current government-contractor relationship. At this point in time it should be uncontroversial for both supporters and critics of private contractors to say that they have done many things well and some things not so well. After all, as the saying goes, only God is perfect and the last time I checked nobody was saying private contractors were the Supreme Deity.
With that in mind let’s take a look at a just released report by the Special Inspector General for Iraq (SIGIR).
This report, titled “Applying Iraq’s Hard Lessons to the Reform of Stabilization and Reconstruction Operations” elaborates on the key conclusions of its February, 2009, lessons-learned report “Hard Lessons: The Story of Iraq Reconstruction.”
The report contains a number of specific recommendations, including one to establish a new entity that would be accountable for planning and executing stability and reconstruction operations (SRO). Private military contractors have long claimed that they can bring unique expertise and experience to such an area. Certainly, ongoing relief efforts in Haiti give them the latest opportunity to make their case.
Looking at private contractors past performance in Iraq the SIGIR report notes past
Regardless of incentives, federal civilians will not be available in sufficient numbers to ensure an adequate civilian workforce for future SROs. Contractors thus will continue to fill essential roles. Given this reality, the U.S. government should better prepare to deploy qualified and properly overseen contractors from the outset of an SRO. (p. 17)
Thus, we can’t do without contractors but government is not yet where it should be in terms of being able to do proper oversight of them. In case that is not clear enough the report says in the very next paragraph:
SIGIR’s reports repeatedly documented contingency contracting weaknesses in Iraq, from poor compliance with the Federal Acquisition Regulation (FAR) to ad hoc oversight systems that could not keep track of contracts. SIGIR found contracting entities that improvised systems and procedures to monitor contracts, and produced poor and incomplete contracting and procurement histories. These weaknesses led to fraud, waste, and abuse. As Secretary Gates aptly observed, “Contracting in Iraq was done willy-nilly.” The Commission on Wartime Contracting underscored this point, noting that the “weaknesses in the federal contract management and oversight systems created plentiful opportunities for fraud, waste, and abuse.”
That is a noteworthy statement, considering how often private military companies which get in trouble claim they follow all the provisions in the FAR.
Why does government do such a lousy job on contracting oversight? The answer has long been obvious and it has nothing to do with Dick Cheney and Halliburton conspiracies.
One of the chief causes of the contracting problems in Iraq stemmed from a decision that far pre-dated the invasion. During the 1990s, the Army reduced its acquisition workforce by 25 percent, while, during the same period, its contracting actions increased sevenfold. This left the Army with a shortage of warranted contracting officers just when the largest overseas contracting program in U.S. history was beginning in 2003. (p. 18)
Of course, poor contractor oversight is not just a problem for the Defense Department
The State Department experienced unprecedented contracting burdens in Iraq. In 2000, State spent $1.2 billion on federal contracts, but, by 2005, its spending had risen to $5.3 billion, a jump of 332 percent. As Secretary Clinton noted, “Contractors are there to support, not supplant. USAID and the State Department must have the staff, the expertise, and the resources to design, implement and evaluate our programs.” State, however, does not currently have sufficient staff or systems to oversee its growing contracting responsibilities. (pp. 18-19)
Now, given all the years that people have been saying over and over and over again how important oversight is the following is going to shock even veteran observers:
Oversight is a critical core governmental function; but oversight of SROs has been an ad hoc process. Despite recognition that a convergence of hazardous conditions in SROs-including a cash environment, the desire for quick results, and unstable working conditions-create vulnerabilities for fraud, waste, and abuse; no permanent system for SRO oversight currently exists. The U.S. government began spending huge sums of money in Iraq in 2003 without sufficient accounting processes in place. The significant fraud, waste, and abuse that ensued might have been deterred or detected had there been a robust oversight capability in place from the outset. In 2003, the Congress created an office of inspector general to oversee the CPA’s [Coalition Provisional Authority] activities. This office became SIGIR in 2004, with the Congress gradually extending its mandate to include oversight of all U.S.-funded Iraq reconstruction activities. By contrast, no Special Inspector General was created for Afghanistan until 2008-$38 billion and seven years into the program.
What does SIGIR think should be done? It says the “challenges inherent in operating in SRO environments, the specialized nature of contingency contracting, and the sheer number of programs and projects requiring review militate in favor of creating a single standing oversight capability for all SROs. Because these contingency operations are necessarily interagency enterprises, the body charged with overseeing them should possess a mandate enabling it to audit, inspect, evaluate, and investigate programs and projects conducted by any agency present in theater.”
Specifically it calls for the creation of a new office to manage SROs-the U.S. Office for Contingency Operations, which could significantly enhance SRO planning and execution.
SIGIR notes that::
The seven-year Iraq stabilization and reconstruction program-the largest ever undertaken by the United States-began without a sufficiently established management structure capable of executing the unprecedented effort. In mid-2003, the U.S. government undertook a massive reconstruction mission-much larger than planned and now exceeding $53 billion-with an ad hoc management system. Some projects met contract specifications, but the many unacceptable outcomes stemmed chiefly from the lack of a clear, continuing, and coherent management structure (as opposed to a paucity of resources or poor leadership). Hard experience has shown that the United States did not have the financial, personnel, information technology, or contracting systems in place necessary to execute what became the most extensive and most expensive SRO in history. It is thus not surprising that the Iraq program failed to achieve its goals. (p. 23).
Putting aside for now the larger issue of whether the U.S. should be engaging in SRO operations, which often is a euphemism for war and conflict, the lesson of the past twenty years is clear. The current government contracting relationship does not work nearly as well as it should.
To its credit private industry has often been very clear and articulate in saying just that. The SIGIR recommendation offers a possible way to improve the status quo. It will be interesting to see whether private industry steps up to the plate and offers its support to help make it happen.