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It should be pointed out that Iraq and other deployments are not merely DoD exercises.
The Department of State and other agencies can be major players. Inter-agency efforts and
visibility among various agency contractors have not typically been well coordinated. DoD needs
to get its policy and doctrine in order. That cannot be done in isolation, however. Other agencies
need to be consulted and, ultimately, a government-wide policy formulated. As exemplified by
the developments concerning “direct participation in hostilities,” there are international
dimensions to be considered as well.
The DFARS change discussed above rejected what was essentially a modest proposal
to enhance the combatant commander’s contracting authority. 69 The rejection was on the basis
that the change was not consistent with existing procurement law and policy. Even if the stated
basis was correct, it is interesting to note that there have been no subsequent initiatives to
modify procurement law and policy to accommodate the kind of change proposed. The
procurement status quo was apparently judged more important than the needs of troops and
contractor personnel on the battlefield.
The success of our nation’s enterprise in Iraq depends largely on our military presence.
Contractors provide a vital part of our military presence. The willingness of contractors and their
employees to go to Iraq (and other dangerous places) is based on a mix of profit and
patriotism. 70 In Iraq, contractor employees “live like soldiers;” and in the case of some
Lockheed-Martin employees; were under mortar fire for 180 consecutive days. 71 Contractor
employees have suffered considerable casualties—including nearly three hundred deaths by
one count. 72 Contractor employees generally consider themselves as part of the “team” and try
to be responsive to the local military chain of command. 73
Contracting in Iraq works. The fact that it works is based on a modus vivendi between
contractors and the local military authorities with the apparent acquiescence or benign neglect
of some contracting officials. It is not based on the strict application of procurement law and
policy. Problems are ironed out based on good will. Out-of-scope changes to contract work are
accommodated. Ratification actions are routinely used to retroactively approve otherwise
unauthorized actions. In cases where traditional contracting rules are strictly applied, the result
is often delay and added expense. It goes without saying that in war, delay in getting needed
work done can result in deaths to personnel and mission failure.
If the misguided political criticism and excessive oversight applied to some aspects of
Iraq contracting were generally applied to contracting throughout Iraq, it seems certain the
modus vivendi would break down. The strict application of procurement law and policy could
result in a serious decline in the effectiveness of contracting in Iraq and in contingency
contracting generally. The rejection of the DFARS change proposal is just one example
illustrating that the contracting community is extremely reticent to sacrifice its principles for
military principles or the real-world needs of soldiers, contractors and commanders. Apparently
69 See Douglas (note 36) for a relatively detailed discussion of the proposed change.
70 Dunn (note 1) op. cit., 24.
71 Colby (note 26) ibid.
72 Conference Briefs (note 46), 7.
73 Colby (note 26) ibid. Dunn (note 1), op. cit., 22-24.
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