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was reimbursed for expenses actually incurred, but some were fixed-price. In other cases,
“ratification [after the fact approval] was commonly used.” 50
Based on the foregoing discussion, it is not unreasonable to conclude that there has
been no crisis from the lack of “contract unity of command” because in fact many contractors
are following directions of the local command and acting as if they were subject to the chain of
command. This may be because they believe they are subject to the chain of command or
merely because it makes good sense. In other cases, contracting officers are in the theater and
available to make timely decisions coordinated with the local military command. 51
When contractors act as if they are subject to the local chain of command and take their
directions accordingly, it does not seem to result in disputes and litigation. This probably stems
from the fact that many absentee contracting officers realize they are in no position to give
timely or intelligent direction to contractors deployed at a distant and dangerous location. By
approving billings for T&M contracts without undue scrutiny or ratifying “unauthorized”
contractual actions, contracting officers are endorsing “on the ground” decisions that they are
not really in a position to second-guess.
The immediately preceding paragraphs are not meant to imply that the traditional
contract lines of authority and contracting rules never work for deployed combat support
contracts. Considering that both contractors and government personnel have been steeped in
traditional rules for decades, they must sometimes have been made to work in ways
approximating normal efficiency. The fact that there are documented reports of disconnects,
inefficiency, and apparently considerable instances of ignoring contracting lines of authority,
tends to strongly suggest that a preference for contracting rules over military principles may be
misguided.
It is hardly comforting to say, “But see, contracting officers do approve out of scope T&M
billings and do ratify unauthorized actions; the system does work.” If the DoD intends to operate
consistent with policy, out-of-scope T&M billings should not be approved, and ratifications
should be rare rather than “routine” and certainly not handled in a way that “encourages such
commitments” (FAR 1.602-3 (1)). Strict enforcement of contracting rules might well bring about
the crisis flowing from a lack of unity of command that has not yet been apparent. If contracting
rules and policies cannot be strictly applied without threatening important military principles,
perhaps they need to be seriously reconsidered.
The author’s own recommendations for enhancing the combatant commander’s
contracting authority have already been mentioned. 52 It is worth noting that in addition to the
author’s recommendations regarding strengthening the contracting authority of the theater
50 Nibley, S. (2006, February 24). Emergency contracting at home and in battle. Presentation at West
Government Contracts Year in Review Conference, Washington, DC (hereafter cited as West
conference). See FAR 1.602-3 for ratification policy and procedure.
51 The mere presence of contracting officers in a theater does not guarantee timely decisions. In Iraq, at
one point contract oversight personnel outnumbered warranted contracting officers. Some contracting
officers were so intimidated and afraid to make a wrong decision that they made no decisions at all.
Soloway Testimony (note 31).
52 Note 1, op. cit., pp. 63-67, 75-77.
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