When it comes to overseas contingency contracting there are a few truisms that must be institutionalized into the government mindset.
Contractor roles must be considered up front as part of the force planning process or risk failure to fully support the troops on the ground.
Contracting officials must be trained and well versed in the complexities of contracting in a fluid environment.
Contracting officials must be afforded the flexibility to respond to that fluid environment.
The Comprehensive Contingency Contracting Reform Act of 2012 (S. 2139), introduced Feb. 29 by Sens. Claire McCaskill, D-Mo., and Jim Webb, D-Va., appears to succeed on the first two points, but falls woefully short on the third.
Let’s start with the positive aspects of the bill, which are based on the final recommendations of the Commission on Wartime Contracting.
The Senators are absolutely right to include mandates for the three main overseas responders—the Defense Department, the State Department and the U.S. Agency for International Development—to include contract support considerations from the start of their planning for contingency operations. Timeand again during the recent conflicts in Iraq and Afghanistan, it was clear that upfront planning for the use of contractors would have improved delivery and outcomes, as well as controlled cost.
The Senators also included provisions in the bill to strengthen the acquisition workforce and its ability to contract for contingencies. An inexperienced or under-resourced acquisition workforce was a key contributing factor to many of the contracting problems encountered in Iraq and Afghanistan.
Attention to these issues through legislation could help make the culture changes needed in future contingency operations planning.
Despite these positive reforms included in the bill, there are unfortunately a handful of provisions that, if adopted, would actually restrict the government’s ability to respond to future contingency situations overseas and would increase contingency contracting challenges for government and contractors. These proposals simply run contrary to smart government and smart contracting practices, laying waste to due process, fairness and transparency. Here’s how:
1. Denial of due process
The bill would require the automatic suspension of a company on the basis of undocumented allegations of any wrongdoing by any employee and would deny companies the basic tenets of due process. The Wartime Contracting Commission rescinded a similar preliminary recommendation when it made its final report. Further, the Obama administration and government suspension and debarment officials have strongly opposed this proposal as unfair, unwise and potentially detrimental to the government.
The bill unfairly terminates a contractor’s right to respond to past performance evaluations and to have that response entered into the record. This provision goes well beyond what the Wartime Contracting Commission recommended and represents a stunning reversal of the longstanding tenets of fairness that underpin the government's past performance reporting process.
2. Inflexibility
The bill would limit subcontracts to one tier, which is unrealistic and would make it nearly impossible for the government to rapidly obtain the goods and services they need to support warfighters, aid workers, diplomats and others responding to a crisis overseas.
The bill establishes arbitrary limits on periods of contract performance that add unnecessary levels of uncertainty, risk and cost in an already dynamic contracting and performance environment.
So what should be done to ensure the right types of contingency contracting reforms are adopted? First, eliminate the provisions that hamper flexibilities and rob parties of due process to ensure all parties are protected. Second, increase the focus on the perennial issues present in every contingency contracting event, such as professionalizing the workforce and improving upfront planning. Such thoughtful and balanced proposals will enhance and improve the ability of both government and industry to support our troops and others supporting our government’s missions in a warzone.
