The Contract Manager's Role As a contractor, receiving the required law of war training before serving with the U.S. Armed Forces 40 Contract Management June 2010 BY Robert S. Wells
in Ensuring Ethical Conduct on the World Stage during peace and stability operations isn't just a requirement it's the right thing to do. Contract Management June 2010 41
The contract Manager's Role in ensuring ethical conduct on the world stage Over the past year, the U.S. government has made major improvements in how it contracts for contingency, or peace and stability, operation support. The government accomplished this by finalizing the Federal Acquisition Regulations (FAR) and the Department of Defense s Defense FAR Supplement (DFARS) clauses and provisions that deal with contractor personnel who deploy outside of the United States in support of overseas contingency operations (OCOs). This progress and new regulation inherently drives a greater management responsibility by peace and stability support contractors. Beginning in 2010, the management of contingency contracting, and the role of contract managers, will never be more important. Contract managers are now charged with ensuring that contractor personnel accompanying U.S. Armed Forces, or those who operate in State Department designated danger zones, have adequate training regarding ethical and lawful conduct. The contract manager must help ensure that his or her company does not become liable for war crimes and other serious legal liability and business risks. Contract administrators should acknowledge and anticipate that regulatory and enforcement risk to their firms, and the industry as a whole, will increase under renewed congressional oversight; the potential implications of the 2010 Wartime Commission Report; and the new 2010 regulations requiring Department of Defense (DOD) components, the Department of State (DOS), and the U.S. Agency for International Development (USAID) to include DFARS 252.225-7040/FAR 52.225-19 data in the Synchronized Pre-deployment and Operational Tracker (SPOT) system. All of these imperatives coincide to make this the year of the contract manager. The Past and Contract Managers Waiting for the Final Rules and Regulations Since late 2006, DOD, DOS, and USAID procurement and acquisition policy staffs have established new rules calling for contractors to institute effective training programs to prevent violations of the law of war when deployed overseas during contingency or danger post support operations. These rules represent a constructive effort toward better regulating private sector operations in conflict and post-conflict environments. These rules also reflect a U.S. government imperative and belief that the high standards of ethical conduct will both benefit the industry and serve the greater causes of peace, development, and human security. In January 2009, the U.S. government finalized new regulations requiring contractors to ensure their employees in designated areas are familiar with and comply with: United States, host country, and thirdcountry national laws; Treaties and international agreements; U.S. regulations, directives, instructions, policies, and procedures; and Orders, directives, and instructions issued by the chief of mission or the regional combatant commander relating to mission accomplishments, force protection, security, health, safety, or relations and interaction with local nationals. These requirements apply to contractor support for the U.S. Armed Forces deployed outside the United States in contingency operations, humanitarian or peacekeeping operations, other military operations, or military exercises when designated by the combatant commander. The partner rule FAR 52.225-19, Contractor Personnel Supporting a Diplomatic Mission Outside the U.S. also applies when contractors are providing support at a diplomatic or consular mission outside the United States where a contractor performs a contract administered by federal agency personnel subject to the direction of a chief of mission. The Present and the Contract Managers Responsible for Managing the Requirements The federal government continues to implement the guidance necessary to ensure compliance with these rules. Since the fall of 2009, U.S. government solicitations and corporate terms and conditions of purchase have incorporated the important DFARS 252.225-7040 clause. Additionally, requests for proposals (RFPs) now contain 42 Contract Management June 2010
The contract Manager's Role in ensuring ethical conduct on the world stage language implementing the new rules via contract language. The RFPs containing the DFARS 252.225-7040 clause and the similar FAR 52.225-19 clause are all managed by DOD, DOS, and USAID. The Department of Defense The primary DOD office responsible for contingency contracting is the Office of Defense Procurement and Acquisition Policy (DPAP). Since the finalization of the 2009 DFARS Part 252 rule, DPAP s Program Acquisition/Contingency Contracting (PACC) and its contingency contracting team have been responsible for ensuring that the law of war requirements were clarified and contained within the DFARS clauses and contract language. The Defense Contract Management Agency (DCMA) is also responsible for ensuring the quality assurance of the products and services that are provided to the warfighter. The Department of State and the U.S. Agency for International Development The primary DOS offices responsible for the management and accountability of FAR 52.225-19 is the Office of the Procurement Executive (A/OPE) and the Office of Acquisitions Management (A/LM/AQM). While A/OPE provides guidance on contracting matters and assists overseas embassies and consulates in contracting for needed supplies, services, and construction, A/LM/ AQM manages FAR regulatory guidance and has completed contract and grant awards for operations support in Iraq, overseas buildings operations construction projects, information technology, worldwide law enforcement and anti-narcotics support, and other requirements for domestic bureaus and overseas posts. USAID manages the FAR 52.225-19 rule through the Washington, DC, Office of Procurement. At USAID, about one-half of the contract and grant awards made are negotiated, issued, and administered by the I don t believe in team motivation. I believe in getting a team prepared so it knows it will have the necessary confidence when it steps on a field and be prepared to play a good game. Tom Landry Contract Management June 2010 43
The contract Manager's Role in ensuring ethical conduct on the world stage Washington, DC, office while the other half are negotiated, issued, and administered by contracting and grant staff located at USAID missions worldwide. The Future Responsibility, Risk Mitigation, Good Business, and the Trained Workforce Corporate and contractor business members of the peace and stability operations industry are required to comply fully with DFARS 252.225-7040 for contractor law of war training. It is a Must-Do for the Profession Since the May 2006 approval of the DOD Law of War Program, the Fiscal Year 2007 John Warner National Defense Authorization Act (Public Law 109-364) making military contractors supporting the armed forces in Iraq subject to court-martial jurisdiction and the issuance of the DFARS and FAR rules in 2008 and 2009, the contract management profession has been playing catch up. It is imperative and required that the profession now raise the bar of excellence through due diligence and training. In raising that bar, the industry hopes to move forward from the 2005 2009 period. During that time frame, four major contractors were involved with federal criminal litigation, companies who faced the penalty of contract termination, U.S. government decertification, and significant damage to their corporate reputations. Previously, the federal government did not have sufficient guidance and regulatory language in place to monitor the actions of their support contractors. This Year, There is no Excuse The final rules and new legislation allow the U.S. government to hold contingency and overseas contractors accountable for law of war compliance, including the requirement to complete the DFARS 252.225-7040/FAR 52.225-19 mandated contractor law of war training. Therefore, with this in mind, contract managers have important management responsibilities for two primary reasons: Supporting their employees by educating the individual support or security contractor with information necessary to empower them to make better decisions in a contingency will greatly help to avoid the type of incidents that expose the contractor to legal jeopardy; and For peace and stability support companies, proactive, visible compliance with this rule is a powerful risk mitigation strategy for the corporation. In this new era of contractor accountability, it is essential that corporations participating in contingency contracting or new smart power business not only do the right thing, but be seen doing the right thing. A well-thought-out, integrated training and education program for employees may prove to be a significant risk mitigation strategy insulating the corporation from the bad actions of an individual by ensuring good training is conducted and documented. In fact, the documentation of DFAR 252-225-7040/FAR 52.225-19 law of war training is expected to receive new visibility by Congress and the Government Accountability Office. The U.S. government will be looking for verification that contractors institute effective programs to prevent law of war violations by their personnel. Contract managers are responsible for ensuring that the deploying contractor certifies that its personnel has received appropriate law of war training prior to deploying with the U.S. Armed Forces and report any violations of the law of war to the appropriate authorities. That training can be provided through a military-run training center or a web-based source if specified in the contract or approved by the contracting officer. Advanced training, commensurate with their duties and responsibilities, may be required for some contractor personnel as specified in the contract. Conclusion The requirement for corporate compliance with the DFARS 252.25-7040/FAR 52.225-19 clauses overseas and subsequent certification for the federal record in the SPOT system will be instituted via contract language, falling under the corporate management responsibility whose first line of defense is the contract manager, whose jobs have been made easier after the issuance of two handbooks the third edition of the Joint Contingency Contracting handbook and the Joint Contracting Officer s Representatives handbook for DCMA-administered contracts. Through enforcement of compliance with the DFARS 252.25-7040 requirement, contract managers will mitigate corporate risk, ensure training proficiency, and ensure America s ethical conduct on the world stage. CM About the Author ROBERT S. WELLS is a consultant with Whitney, Bradley and Brown, Inc., of Reston, Virginia. He is a retired U.S. Navy captain, an Enduring Freedom veteran, and former special advisor to the vice president of the United States. Send comments about this article to cm@ncmahq.org. To discuss this article with your peers online, go to www.ncmahq.org/cm0610/wells and click on Join Discussion. 44 Contract Management June 2010