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Government officials have admitted that what’s in writing and the way things actually happen
may be different; contracting officers may not be directly in control. 44 “Command and control is
more important.” 45
An official for a firm that provided security for officials of the former CPA has stated that
things go on daily “outside the scope of the contract. Reality meets the terms of the contract,
and they don’t match.” 46 His company would “provide a flexible solution.” He emphasized the
give-and-take needed to make the contract work, stating that it was “not a used car deal”!
Some companies (represented in the Professional Services Council or PSC) operating in
Iraq do operate through established lines of contract authority. They found that deployed
“contracting officials often lacked authority that was retained by PCOs [procurement contracting
officer] and ACOs [administrative contracting officer] in the United States. Contractors found that
the terms and conditions of their contracts often dealt inconsistently or erroneously with worker
and work place security requirements. The change-order process was slow due to lack of local
ACO authority and distances involved. Companies often received conflicting and contradictory
directions from their local customer and COR/CO.” 47
A report by PSC companies found “application of FAR requirements involved significant
limits and costs that were not always understood particularly by the oversight community.” 48
There was a lack of authority to waive socio-economic clauses that made no sense under the
circumstances. The prevalence of undefinitized contractual actions and Defense Contract Audit
Agency (DCAA) insistence on immediate audits caused significant problems. The requirements
definition process was too decentralized and often disconnected from the contracting and
contract administration process. Performance requirements and execution times were often
unrealistic and not synchronized with the government’s ability to support contractor
deployments. The “customer” was not always closely connected to contract execution and
established contract roles and responsibilities.
As indicated earlier in this section, some contractors dealt with the disconnection
between the “customer” (military in the field) and the established contract lines of authority by
following directions from the commander in the field rather than seeking direction from the
contracting officer. This practice would seem to risk “constructive changes” in contract work, out
of scope performance, and other actions resulting in requests for equitable adjustments in price,
claims, disputes and litigation. Available evidence suggests that no unusual amount of litigation
is associated with Iraq or other contingency contracting. In the case of the Lockheed-Martin
weapons systems support contracts mentioned above, there have been no claims for equitable
adjustment. 49 Some of these were time and materials (T&M) contracts for which the contractor
44
Ehrhart (note 2), ibid. agreeing with Colby, ibid.
45
Bachman, M. Assoc. General Counsel, Department of the Air Force. Remarks at FPI/Annapolis.
46 Taylor, C. Vice-President, Blackwater USA. Remarks at GWU conference (note 5).
47
Dunn (note 1) op. cit., 41 summarizing parts of a briefing prepared by representatives of the
Professional Services Council.
48 Ibid., p.40; See also Testimony of Soloway, S. (2005, June 32). President, Professional Services
Council, Subcommittee on National Security, Emerging Threats, and International Relations, Committee
on Government Reform, US House of Representatives, (available from PSC).
49 Colby (2006, April 12). Remarks (note 26), ibid. Following sentence modified to include “fixed price.”
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