Overseas Civilian Contractors

News and issues relating to Civilian Contractors working Overseas

Insourcing “Inherently Governmental” Work Will Save Money

By Pratap Chatterjee | January 25, 2011  Center for American Progress

The U.S. Army has identified 2,357 contractors doing work that is supposed to be reserved exclusively for federal employees, according to a new report by the Government Accountability Office released last week.

Another 1,877 contractors are doing “unauthorized personal services” for the Army, the GAO found, while 45,934 contractors are doing Army jobs that are considered closely associated with inherently governmental functions, which require strict oversight and management. Other military services as well as civilian agencies are probably employing thousands of contractors with similar conflicts.

Work that is “inherently governmental,” such as oversight functions or those that may commit the government to overall policy decisions, must not be done by contractors, according to draft guidelines issued last March by the Obama administration.

The GAO estimates that 766,732 contractors worked for the military on service contracts worth $140.4 billion in fiscal 2009. That’s more than the 737,000 civilians that were employed by the military in 2009, according to the U.S. Office of Personnel Management.

The Center for American Progress believes that eliminating contractors who do “inherently governmental” work will save the military dollars and bring it into compliance with the law. Returning or “insourcing” these jobs back to the permanent federal workforce should be the military’s first action in complying with Defense Secretary Robert Gates’s request for a 10 percent annual reduction in contract spending over the next three years.

It’s a shame, but not a surprise, that no such suggestion was included in the spending reduction proposal released last week by the Republican Study Committee. As CAP Senior Fellow Scott Lilly has previously noted: “The real question is why Republicans, in their earnestness to reduce the deficit, have not taken on the issue of government contracting. That has been where the real growth in government has occurred.”

Please read the entire article here

February 21, 2011 Posted by | Civilian Contractors, Contractor Oversight, Department of Defense, Government Contractor | , , , , | Leave a comment

Testimony of Allison Stanger June 18 Commission on Wartime Contracting

Testimony of Allison Stanger
Russell Leng ’60 Professor of International Politics and Economics
Director, Rohatyn Center for International Affairs
Middlebury College
At a Hearing on
“Are Private Security Contractors Performing Inherently Governmental Functions?”
Before the Commission on Wartime Contracting in Iraq and Afghanistan
June 18, 2010

June 27, 2010 Posted by | Civilian Contractors, Private Security Contractor, Wartime Contracting | , , , , | Leave a comment

Testimony of Danielle Brian before the Commission on Wartime Contracting in Iraq and Afghanistan Regarding Private Security Contractors

Testimony of Danielle Brian, Executive Director
Project On Government Oversight (POGO)

before the
Commission on Wartime Contracting in Iraq and Afghanistan
“Are Private Security Contractors Performing Inherently Governmental Functions?”

June 27, 2010 Posted by | Private Security Contractor, Wartime Contracting | , , , , | Leave a comment

Defense policy bill could affect insourcing efforts

At Government Exec.com

By Robert Brodsky rbrodsky@govexec.com June 21, 2010

Many federal service contractors could see their jobs brought back in-house if provisions in the House and Senate Defense authorization bills are passed into law, according to an industry group.

The House version of the policy measure includes an amendment sponsored by Rep. John Sarbanes, D-Md., that would give “special consideration” to federal employees for any function that has been performed by a government worker during the past decade, was awarded without competition, is closely associated with an inherently governmental task, or that the private sector has performed poorly during the past five years.

The Sarbanes amendment also would prohibit insourcing quotas unless they were based on research or analysis, ask officials to give consideration to using federal employees for new functions, and require agencies to take inventories of their service contracts to determine which should not be outsourced.  Read the whole article here

June 22, 2010 Posted by | Civilian Contractors, Contingency Contracting, Wartime Contracting | , , , , | Leave a comment

Hearings Reveal Lapses in Private Security in War Zones

By Pratap Chatterjee*

WASHINGTON, Jun 21, 2010 (IPS) – Jerry Torres, CEO of Torres Advanced Enterprise Solutions, has a motto: “For Torres, failure is not an option.” A former member of the Green Berets, one of the elite U.S. Army Special Forces, he was awarded “Executive of the Year” at the seventh annual “Greater Washington Government Contractor Awards” in November 2009.

On Monday, Torres, whose company provides translators and armed security guards in Iraq, was invited to testify before the Commission on Wartime Contracting (CWC), a body created in early 2008 to investigate waste, fraud and abuse in military contracting services in Afghanistan and Iraq.

Torres was asked to testify about his failure to obtain the required clearances for “several hundred” Sierra Leonian armed security guards that he had dispatched to protect Forward Operating Base Shield, a U.S. military base in Baghdad, in January 2010.

Torres didn’t show up.

An empty chair at the witness table was placed ready for him together with a placard with his name on it next to those for representatives of three other companies working in Iraq – the London-based Aegis, and DynCorp and Triple Canopy, both Virginia-based companies.

“This commission was going to ask him, under oath, why his firm agreed in January to assume private security responsibilities at FOB Shield with several hundred guards that had not been properly vetted and approved,” said Michael Thibault, one of the co-chairs of the commission and a former deputy director of the Defence Contract Audit Agency.

“This commission was also going to ask Mr. Torres why he personally flew to Iraq, to FOB Shield, and strongly suggested that Torres AES be allowed to post the unapproved guards, guards that would protect American troops, and then to ‘catch-up the approval process’.”

Instead, a lawyer informed the commission staff that Torres was “nervous about appearing”.

The failure of a contractor to appear for an oversight hearing into lapses was just one example that the use of some 18,800 armed “private security contractors” in Iraq and another 23,700 in Afghanistan to protect convoys, diplomatic and other personnel, and military bases and other facilities in Afghanistan and Iraq was not working.

Blackwater’s new Afghan contract

Perhaps the most famous private military contractor in Afghanistan and Iraq – North Carolina-based Blackwater – was not invited to sit at the witness table either, despite the fact that the company had been the subject of several investigations into misconduct.

For example, in September 2007, security guards from North Carolina-based Blackwater guards shot and killed 17 Iraqi civilians in Baghdad’s Nisour Square.

Blackwater staff have also been accused of killing other private security contractors – in December 2006, Andrew J. Moonen, was accused of killing a security guard of the Iraqi vice president, Adel Abdul Mahdi. And as recently as May 2009, four Blackwater contractors were accused of killing an Afghan on the Jalalabad road in Kabul.

Members of the commission noted with astonishment that the State Department had awarded Blackwater a 120-million-dollar contract to guard U.S. consulates in Heart and Mazar-i- Sharif in Afghanistan this past Friday.

Asked to explain why Blackwater was awarded the contract, Charlene R. Lamb, deputy assistant secretary for international programmes at the State Department, stated that the competitors for the contract – DynCorp and Triple Canopy – weren’t as qualified.

Yet Don Ryder of DynCorp and Ignacio Balderas of Triple Canopy testified that they were both qualified and able to do the contract. The two men said that they would consider lodging a formal protest at the State Department Tuesday after a de-briefing with the government.

The choice of Blackwater, which has been banned by the government of Iraq, left the commissioners with little doubt that the contract award system was flawed. “What does it take for poor contractual performance to result in contract termination or non-award of future contracts?” wondered Thibault.

Inherently Governmental

At a previous hearing of the commission last week, John Nagl, president of the Washington, DC-based Centre for a New American Security, submitted a report on the subject that explained why the government was turning to these companies: “Simple math illuminates a major reason for the rise of contractors: The U.S. military simply is not large enough to handle all of the missions assigned to it.”

Yet it appears that the government does not even have the oversight capability to police the companies that it has hired to fill the gap.

Some witnesses and experts said that by definition this work should not be handed out to private contractors in war zone.

“Private security contractors are authorised to use deadly force to protect American lives in a war zone and to me if anything is inherently governmental, it’s that,” said Commissioner Clark Kent Ervin, a former inspector general at both the State Department and the Homeland Security Department. “We don’t have a definitional problem, we have an acknowledgement of reality problem.”

Non-governmental expert Danielle Brian, executive director of the Project on Government Oversight (POGO), said: “It has become clear to POGO that the answer is yes, PSCs are performing inherently governmental functions. A number of jobs that are not necessarily inherently governmental in general become so when they are conducted in a combat zone. Any operations that are critical to the success of the U.S. government’s mission in a combat zone must be controlled by government personnel.”

*This article was produced in partnership with CorpWatch – http://www.corpwatch.org.

June 21, 2010 Posted by | Afghanistan, Blackwater, Civilian Contractors, Contingency Contracting, Contractor Corruption, Contractor Oversight, DynCorp, Iraq, NATO, Private Security Contractor, State Department, Triple Canopy | , , , , , , , , , , | Leave a comment

Do Armed Contractors Belong in War Zones?

By Pratap Chatterjee* at IPS News

WASHINGTON, Jun 16, 2010 (IPS) – Should private contractors like Blackwater be allowed to continue to provide armed security for convoys, diplomatic and other personnel, and military bases and other facilities in Afghanistan and Iraq? A bipartisan U.S. Congressional commission will spend two days cross-examining 14 witnesses from academia, government and the companies themselves to come up with an answer.

“Some security tasks are so closely tied to government responsibilities, so mission-critical, or so risky that they shouldn’t be contracted out at all,” says Christopher Shays, a former Republican member of Congress from Connecticut.

Shays is the co-chair of the Commission on Wartime Contracting (CWC), a body created in early 2008 to investigate waste, fraud and abuse in military contracting services in Afghanistan and Iraq.

The commission is expected to reveal results from a seven day fact-finding trip to Iraq last month in which spot checks on four military bases turned up a contracting company hired to protect a military base that had not been vetted even though they had dispatched hundreds of employees. At another base, individual security guards were identified who had not undergone proper background checks.

The thorny question of what is “inherently governmental” and what can be turned over to contractors was singled out for attention by President Barack Obama in March 2009, when he ordered the Office of Federal Procurement Policy (OFPP), a department within the White House’s Office of Management and Budget, to come up with an answer.

Read the full article here

June 20, 2010 Posted by | Afghanistan, ArmorGroup, Blackwater, Civilian Contractors, Contingency Contracting, DynCorp, G4S, Legal Jurisdictions, Pentagon, Private Military Contractors, Private Security Contractor, Safety and Security Issues, State Department, Triple Canopy | , , , , , , , | Leave a comment

To Be, or Not to Be, Inherent: That is the Question

Inherently Governmental

By David Isenberg at Huff Post

There are two words which strike fear in the hearts of all those who follow the private contracting issue. And by private contractors I just don’t mean those carrying out security or military function. Rather I mean any task that at some point was considered the domain of someone in the public sector.

Those two words are inherently governmental. Far stronger men than I have cowered in fear when asked to define what an inherently governmental task is.

Trying to define the term is like trying to nail Jell-O to the wall; only nailing Jell-O is easier. Yet the stakes are enormous. Obviously private sector companies would like the definition to be crafted as narrowly as possible as it potentially means more work for them.

Years ago it was reported that the use of private contractors as interrogators at Abu Ghraib and other prisons in Iraq violated an Army policy that requires such jobs to be filled by government employees because of the “risk to national security.” An Army policy directive published in 2000 classifies any job that involves “the gathering and analysis” of tactical intelligence as “an inherently governmental function barred from private sector performance.”

The Office of Management and Budget (OMB) lists the following functions as inherently governmental: interpreting and executing laws; ordering military or diplomatic action on behalf of the United States; conducting civil or criminal judicial proceedings; performing actions that significantly affect the life, liberty, or property of private persons; and collecting, controlling, or disbursing appropriated and other federal funds.

One has to give credit to the Obama administration for daring to try and do some thing in this area, where angels fear to tread.

Last year the Administration issued a Presidential Memorandum on Government Contracting, issued on March 4, 2009, which directs OMB to clarify when governmental outsourcing of services is, and is not, appropriate, consistent with section 321 of the National Defense Authorization Act for FY 2009. Section 321 requires OMB to (i) create a single definition for the term “inherently governmental function” that addresses any deficiencies in the existing definitions and reasonably applies to all agencies; (ii) establish criteria to be used by agencies to identify “critical” functions and positions that should only be performed by federal employees; and (iii) provide guidance to improve internal agency management of functions that are inherently governmental or critic.

On March 31 the Office of Federal Procurement Policy at the Office of Management and Budget issued a proposed policy letter to provide guidance addressing when work must be reserved for performance by federal employees. The letter was intended to implement direction in the President’s Memorandum. The letter states:

A single definition of “inherently governmental function” built around the well-established statutory definition in the Federal Activities Inventory Reform Act (FAIR Act), Public Law 105-270, would replace existing definitions in regulation and policy. The FAIR Act defines an activity as inherently governmental when it is so intimately related to the public interest as to mandate performance by Federal employees. Examples and tests would be provided to help agencies identify inherently governmental functions.

Given the existing multiple definitions of “inherently governmental” it is understandable the government wants to use just one. The letter states:

There are three main sources for definitions and guidance addressing inherently governmental function: (1) The FAIR Act, (2) the FAR, and (3) OMB Circular A-76. a. Definition. The FAIR Act, FAR, and Circular A-76 each make clear that the term “inherently governmental function” addresses functions that are so intimately related to the public interest as to require performance by federal government employees. There are some variations in the language used by the three sources to describe the types of functions included in the definition. In particular, the FAIR Act states that the term includes activities that require the “exercise of discretion” in applying “Federal Government authority,” whereas the Circular speaks in terms of the exercise of “substantial discretion” in applying “sovereign” Federal government authority. It is unclear what the impact of this type of variation has been. This notwithstanding, these variations can create confusion and uncertainty.

The proposed policy letter retains an illustrative list of functions closely associated with inherently governmental functions. These include:

1. The direct conduct of criminal investigation.
2. The control of prosecutions and performance of adjudicatory functions (other than those relating to arbitration or other methods of alternative dispute resolution).
3. The command of military forces, especially the leadership of military personnel who are members of the combat, combat support or combat service support role.
4. The conduct of foreign relations and the determination of foreign policy.
5. The determination of agency policy, such as determining the content and application of regulations, among other things.
6. The determination of Federal program priorities or budget requests.
7. The direction and control of Federal employees.
8. The direction and control of intelligence and counter-intelligence operations.
9. The selection or non-selection of individuals for Federal Government employment.
10. The approval of position descriptions and performance standards for Federal employees.
11. The determination of what Government property is to be disposed of and on what terms (although an agency may give contractors authority to dispose of property at prices with specified ranges and subject to other reasonable conditions deemed appropriate by the agency).
12. In Federal procurement activities with respect to prime contracts:
(a) determining what supplies or services are to be acquired by the Government (although an agency may give contractors authority to acquire supplies at prices within specified ranges and subject to other reasonable conditions deemed appropriate by the agency);
(b) participating as a voting member on any source selection boards;
(c) approval of any contractual documents, to include documents defining requirements, incentive plans, and evaluation criteria;
(d) awarding contracts;
(e) administering contracts (including ordering changes in contract performance or contract quantities, taking action based on evaluations of contractor performance, and accepting or rejecting contractor products or services);
(f) terminating contracts;
(g) determining whether contract costs are reasonable, allocable, and allowable; and
(h) participating as a voting member on performance evaluation boards.
13. The approval of agency responses to Freedom of Information Act requests (other than routine responses that, because of statute, regulation, or agency policy, do not require the exercise of judgment in determining whether documents are to be released or
withheld), and the approval of agency responses to the administrative appeals of denials of Freedom of Information Act requests.
14. The conduct of administrative hearings to determine the eligibility of any person for a security clearance, or involving actions that affect matters of personal reputation or eligibility to participate in government programs.
15. The approval of federal licensing actions and inspections.
16. The determination of budget policy, guidance, and strategy.
17. The collection, control, and disbursement of fees, royalties, duties, fines, taxes and other public funds, unless authorized by statute, such as title 31 U.S.C. 952 (relating to
private collection contractors) and title 31 U.S.C. 3718 (relating to private attorney collection services), but not including:
(a) collection of fees, fines, penalties, costs or other charges from visitors to or patrons of mess halls, post or base exchange concessions, national parks, and similar entities or activities, or from other persons, where the amount to be collected is easily
calculated or predetermined and the funds collected can be easily controlled using standard cash management techniques, and
(b) routine voucher and invoice examination.
18. The control of the Treasury accounts.
19. The administration of public trusts.
20. The drafting of Congressional testimony, responses to Congressional correspondence, or agency responses to audit reports from the Inspector General, the Government Accountability Office, or other federal audit entity.

It will be interesting to see whether example three “The command of military forces, especially the leadership of military personnel who are members of the combat, combat support or combat service support role” will cause any problems for private military or security contractors. In theory it should not but reality on battlefields often has a way of throwing theory out the window.

For other functions that are not listed among the above twenty, OFPP says it will develop a test to analyze “whether a function is inherently governmental based on the nature of the function and the level of discretion to be exercised in performing the function.”

OFPP says agencies should look on a case-by-case basis at the nature of the function to determine if it’s uniquely governmental function and whether the job commits the government to decisions that deal with overall policy discretion or approval, or oversight by federal officials.

The policy also defines “closely associated” with inherently governmental functions and provides 19 examples. These include functions that involve or relate to budget preparation, including workforce modeling, fact finding, efficiency studies and cost analyses, involve or relate to development of regulations, in support of acquisition functions, such as assistance in contract management, technical evaluations and development of statements of work.

Finally the OFPP letter defines critical functions that are considered core capabilities of agency employees.

The proposed policy letter would define critical function to mean a function whose importance to the agency’s mission and operation requires that at least a portion of the function must be reserved to federal employees in order to ensure the agency has sufficient internal capability to effectively perform and maintain control of its mission and operations,” the letter states. “Agencies would be held responsible for ensuring a sufficient number of positions performing critical work are filled by federal employees with appropriate training, experience, and expertise to understand the agency’s requirements, formulate alternatives, manage the work product, and manage any contractors used to support the federal workforce.

This would mean the situation one often finds where contractors supervise contractors would have to end. Although given the current state of the acquisition workforce it won’t happen soon.

If you think the OFPP letter will finally clear things up all I can say is don’t hold your breath. As a marvelously detailed February 1 Congressional Research Service report notes:

The current debate over which functions are inherently governmental is part of a larger debate about the proper role of the federal government vis-à-vis the private sector. This debate is as old as the Constitution, which prohibits privatization of certain functions (e.g., Congress’s legislative function), a prohibition courts enforce under various judicial tests (e.g., nondelegation, functions “affected with the public interest,” etc.). Since the 1920s, federal contracting has been a primary arena for the public/private debate, with the executive and legislative branches contesting (1) which functions the government must perform because they are inherently governmental; (2) which functions the government should perform because they are closely related to inherently governmental functions or for some policy reason; and (3) which functions should be left to the private sector. DOD functions are often central to debates over which functions are inherently governmental because of the specific functions DOD performs; its prominent role in federal contracting; and its unique workforce, which blends military and civilian personnel.

Ironically, this is not the only other inherent debate. Back in 2005 the Pentagon amended the Defense Federal Acquisition Regulation Supplement to address issues related to contract performance outside the United States. Many observers noted that the rule appeared to shift too much risk to contractors. One respondent noted that the use of the term inherently dangerous in paragraph (b) of the clause could jeopardize a contractor’s ability to obtain insurance coverage under the Defense Base Act and other provisions.

When the Pentagon was amending acquisition rules in 2004, it received many comments. One response raised was how much risk contractors must accept. The government’s proposed rule states that carrying out a contract for deployed forces is “inherently” dangerous. “The Contractor accepts the risks associated with required contract performance in such operations,” the proposed rule states. But the Professional Services Council, a group representing companies that perform communications, engineering, and scientific services, interpreted that to mean that the contractor must assume all the risk and said the government should share some responsibility.  Original Here

Follow David Isenberg on Twitter: www.twitter.com/vanidan

April 16, 2010 Posted by | Civilian Contractors, Contractor Oversight, Private Military Contractors, Wartime Contracting | , , , | Leave a comment