Length: 19686 words article ruck up: an introduction to the legal issues associated with civilian contractors on the battlefield michael J. Davidson Michael Davidson is a Lieutenant Colonel in the U. S



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IX. Impact of the FAIR Act

Enacted on October 12, 1998, the Federal Activities Inventory Reform (FAIR) Act n179 requires federal agencies to provide an annual list to the Office of Management and Budget (OMB) for review of commercial activities that are performed by federal employees. n180 Further, the act requires that the list be made publicly available after OMB review and provides a mechanism by which interested parties may challenge omissions and inclusions on the list. n181 When determining whether to contract-out an executive agency activity, the agency must first conduct a "fair and reasonable" cost comparison and then contract-out using a competitive process. n182 The legislation was prompted, in part, by a desire for greater outsourcing and concerns that OMB Circular A-76 (that articulated "Federal policy regarding the performance of commercial activities" n183) was being ignored. n184 Indeed, the FAIR Act appears to be largely a codification of the A-76 process.


n179 Pub.L. No. 105-270, 112 Stat. 2382 (Oct. 19, 1998).

n180 See Implementation of the Federal Activities Inventory Reform (FAIR) Act of 1998, 64 Fed. Reg. 33927 (1999). See also Major Dave Wallace et al., Contract and Fiscal Law Developments of 1998 -- The Year in Review, ARMY LAW. 50 (Jan. 1999).

n181 FAIR Act, 64 Fed. Reg., at 33927. Interested parties include (1) private-sector contractors who suffer a direct, adverse affect by the agency decision not to contract out for the activity, (2) business or professional association representatives of such contractors, (3) employees of executive agency organizations that perform, or may perform, the activity, and (4) certain labor organizations. FAIR Act § 3(b).

n182 FAIR Act § 1(e); FAIR Act, 64 Fed. Reg., at 33927-8; Wallace, supra note 180, at 50.

n183 FAIR Act, 64 Fed. Reg., at 33927.

n184 See Jayna Richardson, Outsourcing & OMB Circular A-76: Sixth Circuit Opens the Door to Federal Employee Challenges of Agency Determinations, 28 PUB. CONT. L.J. 203, 204-5 (1999).

Significantly, the FAIR Act specifically applies to any "military department named in 5 USC 102." n185 Further, OMB clarified that the FAIR Act was not limited to civilian employees of the military departments but also [*257] included any uniformed person performing a commercial function. n186 OMB's announcement that uniformed positions of the military departments were potentially subject to being contracted out set off a flurry of concerned comments in the press. n187
n185 FAIR Act § 4a(2); FAIR Act, 64 Fed. Reg., at 33932.

n186 The requirement to inventory commercial activities "is not limited to civilian employees. Accordingly, military personnel performing commercial activities are subject to the FAIR Act and must be inventoried." FAIR Act, 64 Fed. Reg., at 33934.

n187 See, e.g., George R. Hoffman, Support Personnel in Combat, WASH. POST, July 12, 1999, at 14 ("OMB must not be allowed to sacrifice the military's ability to accomplish its combat mission for short-term, peacetime efficiencies and financial advantage."); McAllister, supra note 2, at 15.

Fortunately for the armed services, a number of potential safe harbors exist. First, the Secretary of Defense may determine that certain activities must be performed by the Government for reasons of national defense. n188 Previously, commercial activities performed by military personnel were excluded from outsourcing if the activity (1) was "essential for training or experience in required military skills . . .," (2) was "needed to provide appropriate work assignments for a rotation base for overseas or sea-to-shore assignments, or . . ." (3) was "necessary to provide career progression to needed military skill levels." n189 The contracting-out decision was to be made giving full weight to "the wartime and peacetime duties of the specific positions involved rather than in terms of broad functions." n190 Second, OMB Circular A-76 and its supplement are inapplicable during "times of declared war or military mobilization." n191 Finally, the FAIR Act and OMB Circular A-76 and its supplemental handbook do not apply to inherently governmental functions. n192 The FAIR Act codified the A-76 definition that an inherently governmental function or activity "is one that is so intimately related to the exercise of the public interest as to mandate performance by federal employees." n193 Unfortunately, with respect to activities performed by the armed forces, the parameters of what activities lie safely within that exception are unclear. Inherently governmental activities "include those activities which require either the exercise of discretion in applying Government authority or the use of value judgment in making decisions for the Government." n194


n188 See FAIR Act, 64 Fed. Reg., at 33932 (citing revised OMB circular A-76).

n189 DoD Inst. 4100.33, Commercial Activities Program Procedures (Sept. 9, 1985), P E(2)(a)(1)(A).

n190 Id. P E(2)(a)(1).

n191 FAIR Act, 64 Fed. Reg., at 33931 (citing revised OMB Circular A-76).

n192 See id. at 33929.

n193 Id. (citing the 1996 Revised Supplemental Handbook).

n194 Id. at 33931 (citing revised OMB Circular A-76); accord FAR 7.501 (1999)).

For purposes of the military, the FAIR Act includes within this exemption "the interpretation and execution of the laws of the United States so as" to advance U.S. interests by military means and to direct or control U.S. officers and employees. n195 Revised OMB Circular A-76 includes within the definition [*258] of the exemption "the discretionary exercise of Government authority" such as "activities performed exclusively by military personnel who are subject to deployment in a combat, combat support or combat service support role." n196 But for the word "exclusively," this phrase would mean that all activities performed by military personnel subject to deployment in combat-related positions would be exempt from the FAIR Act's requirements. The addition of the word "exclusively," however, suggests that the activity is one that only uniformed members of the armed forces are able to perform. Clearly, the command of other uniformed service members n197 and the direct engagement of enemy forces in combat are activities that must be performed exclusively by members of the military. Less clear, however, is the classification of the various logistical support activities, such as cooks, photographers, and military vehicle mechanics. All three activities are the type of functions that OMB Circular A-76 offers as examples of commercial activities. n198


n195 FAIR Act § 5(2)(B)(ii) and (iv).

n196 FAIR Act, 64 Fed. Reg., at 33931 (citing revised OMB Circular A-76).

n197 See Office of Federal Procurement Policy (OFFP) Policy Letter 92-1, Inherently Governmental Functions (23 Sept. 1992), at P4 (stating that "it is clear that certain functions such as the command of combat troops, may not be contracted out . . ."). This policy letter provides authoritative guidance for implementing the FAIR Act. See FAIR Act, 64 Fed. Reg., at 33929.

n198 See id. at 33932-3.

The critical distinction that the FAIR Act and its implementing A-76 guidance seem to disregard is where and under what circumstances the function performed is a more important consideration than the activity itself. This distinction was recognized in the prior DoD guidance on the national defense exception. n199 All members of the uniformed military, with the exception of chaplains and medical personnel, regardless of their position, are expected to be able to take arms against an enemy force when required. Indeed, history is replete with examples of instances when support forces were required to do that very thing. n200 Several recipients of America's highest military award for valor, the Congressional Medal of Honor, earned the medal while performing activities within the armed forces that OMB would characterize as commercial. n201
n199 See supra note 190 and accompanying text.

n200 See infra notes 247 and 249 and accompanying text.

n201 See, e.g., AMERICA'S MEDAL OF HONOR RECIPIENTS: COMPLETE OFFICIAL CITATIONS (1980), at 123 (Marine Corporal William Perkins, Vietnam, combat photographer), 138 (Army Sergeant William W. Seay, Vietnam, truck driver). Cf. NICK MILLS, THE VIETNAM EXPERIENCE: COMBAT PHOTOGRAPHER 91 (1983) (stating that "through it all the combat photographer is exposed to the same risks as the combat soldier and more than once has had to put down his camera and fight").

[*259] X. Labor and Employment Law

Many U.S. labor laws do not apply to contractors performing work in foreign countries. For example, the Service Contract Act, n202 which establishes minimum wages for employees working on government service contracts, does not apply to contracts performed overseas. n203
n202 41 U.S.C. §§ 351-357 (1988).

n203 See FAR 22.1003-2 (Service Contract Act "does not apply to contracts performed outside the United States.").

In some instances, however, labor and employment laws of both the United States and the host nation will apply to government contractors operating overseas, notwithstanding the fact these laws are potentially conflicting. Since June 1997, DFARS 252.222-7002, "Compliance with Local Labor Laws (Overseas)," has required all contractors to comply with "(1) Local laws, regulations, and labor union agreements governing work hours; and (2) Labor regulations including collective bargaining agreements, worker's compensation, working conditions, fringe benefits, and labor standards or labor contract matters." n204 This clause is mandatory for overseas service contracts. n205
n204 DFARS 252.222-7002(a). Compliance with local labor laws will affect the contract's performance costs. For example, Kuwaiti law limits the maximum annual overtime hours to 180, which increases the number of employees that a contractor must hire and ultimately the cost of performance. Article 23, Law No. 38 of 1964 Concerning Labour in Private Sector, New Private Sector Labour Law: No. 38 of 1964 with All Amendments up to 1997 at 201 (Translated by M.A. Mursi) (1977) [hereinafter Mursi] (Article 1, Ministerial Resolution No. 104 of 1994 Concerning Private Sector Overtime Hours).

n205 See DFARS 252.222-7201(a).

Additionally, U.S. antidiscrimination laws enjoy extraterritorial application. In Equal Employment Opportunity Comm'n v. Arabian American Oil Co., n206 the U.S. Supreme Court held that Title VII of the Civil Rights Act of 1964 had no extraterritorial effect. n207 In response, Congress included in the Civil Rights Act of 1991 a definition of "employee" that included a U.S. citizen employed in a foreign country. n208 The Age Discrimination in Employment Act (ADEA) n209 and the Americans with Disabilities Act (ADA) n210 also enjoy extraterritorial application.
n206 499 U.S. 244 (1991).

n207 See id. Title VII prohibits discrimination on the basis of "race, color, religion, sex or national origin. . . ." 42 U.S.C.A. § 2000e-2 (1994 & Supp. 1999).

n208 See 42 U.S.C.A. § 2000e(f) (1994 & Supp. 1999).

n209 29 U.S.C.A. § 623 (1999). For purposes of the Age Discrimination in Employment Act (ADEA), a covered employee "includes any individual who is a citizen of the United States employed by an employer in a workplace in a foreign country." 29 U.S.C.A. § 630(f). In 1984, Congress amended the ADEA to give it extraterritorial effect. See Morelli v. Cedel, 141 F.3d 39 (2d Cir. 1998). See also O'Loughlin v. Pritchard Corp., 972 F. Supp. 1352, 1363 (D. Kan. 1997) (stating that "Congress has shown an intent to apply the ADEA abroad").

n210 42 U.S.C. § 1210. A covered employee includes a U.S. citizen employed in a foreign country. See 42 U.S.C.A. § 12111(4) (1995 & Supp. 1999).

[*260] Congress, however, also provided a safe harbor to companies operating overseas in the form of the foreign law exception. This exception provides that Title VII is not violated "with respect to an employee in a workplace in a foreign country if compliance [with Title VII's requirements] would cause such employer . . . to violate the law of the foreign country in which such workplace is located." n211 The ADEA and ADA contain similar exceptions. n212 Further, the antidiscrimination laws protect only U.S. citizens overseas; they do not extend to third-country nationals working for U.S. companies. n213


n211 42 U.S.C.A. § 2000e-1(b) (1994 & Supp. 1999).

n212 See 29 U.S.C.A. § 623(f)(1) (including "where such practices involve an employee in a workplace in a foreign country, and compliance with [ADEA] would cause such employer, or a corporation controlled by such employer, to violate the laws of the country in which such workplace is located"); 42 U.S.C.A. § 12112(c)(1) (stating that "It shall not be unlawful under [the ADA] for a covered entity to take any action that constitutes discrimination under this section with respect to an employee in a workplace in a foreign country if compliance with this section would cause such covered entity to violate the law of the foreign country in which such workplace is located."). See also Morelli, 141 F.3d at 42 (noting that ADEA contains a foreign law exception); O'Loughlin, 972 F. Supp. at 1363 (same). Additionally, "ADEA does not apply to foreign operations of a foreign employe -- unless there is an American employer behind the scenes." Morelli, 141 F.3d at 42.

n213 See O'Loughlin, 972 F. Supp. at 1364 (finding that "Congress intended to exclude from [the ADEA's] definition of 'employee' noncitizens of the United States employed by an employer in a workplace in a foreign country").

The potential applicability of both domestic and host-nation labor laws creates a nidus for legal problems overseas, particularly for those U.S. contractors performing base-support contracts. For example, in Kuwait, local labor laws restrict women from working at night, n214 which is defined as "the period of consecutive eleven hours falling between seven p.m. and six a.m." n215 This gender-based restriction on employment would likely constitute sex discrimination in violation of Title VII if it occurred in the United States; however, adherence to Kuwaiti labor laws should be permissible under the foreign-law exception to that act. n216


n214 See Mursi, supra note 204, at 19 ("Women may not be employed at night. . . .").

n215 Id. at 91 (Ministerial Resolution No. 28 of 1976 Defining the Term "Night").

n216 Cf. O'Loughlin, 972 F. Supp. at 1363-5 (finding that employer did not violate ADEA by observing age restrictions imposed by United Arab Emirates law).

The foreign-law exception, however, may prove more a dangerous legal reef than a safe harbor for companies adopting discriminatory employment practices in response to local customs, cultural norms, and religious beliefs that do not rise to the level of a "law." n217 In part, this problem results from the failure of Congress to adequately define what constitutes a foreign law that justifies discriminatory practices.


n217 See James David Phipps, Kiss of Death: Application of Title VII's Prohibition Against Religious Discrimination in the Kingdom of Saudi Arabia, 1994 BYU L. REV. 399, 424 (noting that "the foreign law exception does not respect or give deference to prevailing culture, morality or tradition in foreign countries, apparently even if such carries the weight of law").

[*261] In Saudi Arabia, for example, all "laws" are believed to be divinely inspired and contained in Islamic religious material. n218 The king, who is the primary legal authority in Saudi Arabia, cannot make laws because the Holy Qur'an dictates, in effect, that "law-making is not for mortals, but is exercised only by the Divine." n219 Accordingly, in order to govern his kingdom, the king issues regulations, which, although not characterized as laws, certainly enjoy that status in practice. n220 These regulations are contained in the kingdom's "Basic System of Government of the Kingdom of Saudi Arabia," n221 which is based on Islamic law. n222 Article 41 of the Basic System would require U.S. contractor employees in Saudi Arabia to "'observe the values of the Saudi society and respect its traditions and feelings.'" n223 In response to a lawsuit based on a company policy that all women wear a shala (head scarf) and abaya (black robe) in public or that crucifixes not be worn visibly at work, a court may well view Article 41 as too broad to be characterized as imposing a specific legal requirement on the company that would justify the discriminatory employment practice. n224


n218 See id. at 410 n.35 (contained in "the Holy Qur'an and the Sunna ('tradition') of the Prophet (pbuh) or in other specified Islamic jurisprudential texts. . . ."). Muslim etiquette requires that "the Arabic invocation sala allahi alai he wa sallim, meaning 'may Allah's peace and prayers be upon him,'" or its abbreviated form (pbuh), be used whenever the Prophet Muhammed (pbuh) is used. Id. at 405 n.25.

n219 Id. at 410 n.35. (citation omitted).

n220 See id.

n221 Id. at 405 n.22 (citing Royal Decree No. A/90 (Sha'ban 27, 1412; March 1, 1992)).

n222 The Basic System is "governed by the Shari'a (the 'Islamic law'), a law deduced some eleven centuries ago from the Holy Qur'an and the Sunna ('tradition') of the Prophet Muhammed (phub)." Id. at 405.

n223 Id. at 422.

n224 See id. at 422-23. Although Saudi custom, rather than codified law, mandates that women wear the shala and abaya when in public, this custom is enforced by the Saudi Matawa (religious police), who will confront and occasionally take into custody any women not properly attired.


XI. Entitlements and Benefits

The relationship between deployed contractors and the military is one of mutual dependence. Although the military needs the goods and services furnished by civilian contractors, these organizations depend upon the armed forces for protection, basic mail service, quality-of-life facilities, and a host of other support functions.

As a matter of policy, the Army will provide deployed U.S. contractor employees with force protection and various support services, usually on a reimbursable basis. n225 In a policy memorandum, the Department of the Army stated that such support may include "nonroutine medical/dental care; mess; [*262] quarters; special clothing, equipment, weapons or training mandated by the applicable commander; mail, and emergency notification." n226 More specific guidance is contained in applicable contract provisions and specific service regulations. The following discussion merely serves to highlight the broad scope of potential military support to contractors.
n225 See Dep't of the Army Policy Memorandum -- Contractors on the Battlefield, Dec. 12, 1997, at 3.

n226 Id.

If authorized in writing, an installation or equivalent commander may permit contractor employees to eat in military mess halls for extended periods of time, on a reimbursable basis. n227 Before authorizing use of such facilities, the commander must make an affirmative determination that (1) "commercial or nonappropriated fund food service facilities are not readily available or duty assignment precludes departure from the duty area" and (2) food service to other, authorized diners will not be adversely affected. n228
n227 See AR 30-1, Army Food Service Program, P6.27(b)(1) (15 Aug. 1989).

n228 Id.

Subject to any applicable international agreements, DoD contractor employees and their dependents who are U.S. citizens are entitled to unlimited post exchange and motion picture theater privileges overseas. n229 Similarly, civilian contractor employees may shop at overseas commissaries if both the United States and the host nation agree. n230 Further, the supporting command may also provide religious support, medical and dental care, and limited legal assistance if the Government is contractually obligated to provide legal support and such support is permitted under applicable agreements with the host nation. n231
n229 See AR 60-20, Army And Air Force Exchange Service Operating Policies P2.11(b)(1) and (3) (15 Dec. 1992).

n230 As an illustration, in Saudi Arabia the Agreement between the Kingdom of Saudi Arabia and the U.S. Training Mission prohibits contractors from using either the commissary or the base exchange. See Major Brian H. Brady, The Agreement Relating to a United States Training Mission in Saudi Arabia: Extrapolated to Deployed Forces?, ARMY LAW. 14, at 20 (Jan. 1995).

n231 See AR 165-1, Religious Activities, P4.1c (27 Feb. 1998); AR 40-3, Medical, Dental and Veterinary Care, P4.49, 10.2 & App. B (15 Feb. 1985 with changes through 1 Aug. 1995) (care is normally on a reimbursable basis); AR 27-3, The Army Legal Assistance Program, P2.5(7) (10 Sept. 1995) (military legal support is limited to ministerial services, counseling, document preparation and assistance in locating civilian counsel). See also DEP'T OF ARMY, FIELD MANUAL NO. 100-10-2, CONTRACTING SUPPORT ON THE BATTLEFIELD (4 Aug. 1999), at 3-22 (noting that "commanders provide religious support for all personnel, including contractors") [hereinafter cited as FM 100-10-2]; AMC PAM 715-18, supra note 2, at 17-1 (unless contractually required medical and dental care is provided on a reimbursable basis).

When accompanying U.S. forces, contractor employees may travel on military aircraft and chartered commercial carriers. Generally, they are not authorized government-paid invitational orders and are ineligible for city-pair air fares. n232 However, in the unusual circumstance when a contract employee [*263] must travel on DoD business but the applicable contract makes no provision for such travel and reimbursement of associated costs, the agency may issue invitational travel orders. n233


n232 See Joint Travel Regulations, Ch. 6 (chg 398, Dec. 1, 1998), at P C6000, item 10 n.2, and P C6001.

n233 See id. P C6000, item 10.




XII. The Pros and Cons of Contractor Support to the Military

Increased use of contractor support includes both significant advantages and disadvantages for the armed forces. On the plus side, contractor utilization frees scarce military logistical assets for use elsewhere and reduces the U.S. military presence in places like Bosnia where political considerations may limit the number of soldiers deployable to that country. n234 The recent decision to employ an outside contractor to provide verification monitors in Kosovo, rather than use U.S. soldiers, is cited as an example of risk aversion motivated by "political reluctance to become involved in situations where risks are high and there is little domestic constituency for the involvement of U.S. troops." n235


n234 See Major James E. Althouse, Contractors on the Battlefield: What Doctrine Says, and Doesn't Say, ARMY LOGISTICIAN, Nov.-Dec. 1998, at 14, 15. See also GAO REPORT, supra note 25, at 4 ("According to the Army, use of the contractor is the choice of last resort but necessary in these missions because of troop ceilings, unavailability of host nation support, and the need to keep military units available to respond to a major regional conflict."); Charles Cahlink, $ 1 Billion Deal Sets Stage for Future Service Contracts, FED. TIMES, Mar. 15, 1999, at 4 ("the military favors the contracts [in Bosnia] because workers hired under the deal are not counted against limits on military forces permitted in the region").

n235 Thomas K. Adams, The New Mercenaries and the Privatization of Conflict, PARAMETERS 103, 110 (Summer 1999).

Similarly, contractors permit the military to preserve a favorable teeth-to-tail ratio. In the face of a greatly reduced force strength since the end of the Cold War, the military can preserve its combat strength (teeth) by outsourcing some of its logistical support functions (tail). n236 Indeed, when the military possesses only a limited amount of a particular support capability, contractors provide an attractive alternative to overtaxing the military's limited assets. n237
n236 See id. See also Jordan, supra note 3, at 17 (using commercial air carriers allows the Air Force to preserve its "combat assets for missions only the military can perform -- such as direct combat support . . .").

n237 See Colonel Herman T. Palmer, More Tooth, Less Tail: Contractors in Bosnia, ARMY LOGISTICIAN, Sept.-Oct. 1999, at 6, 8 (noting that "civilian contractors can be used to provide support capabilities that are in short supply . . . thus reducing the frequency and duration of deployments for soldiers with low-density, high-demand technical skills").

Further, privatization and outsourcing are frequently touted as a way for the DoD to save money during these financially austere times. n238 For example, it may be less expensive to use contractual expertise than to incur the long-term [*264] costs of training military personnel, particularly for the maintenance of technologically advanced equipment. n239 When deployment and redeployment costs are considered, it may be less expensive to use contractors with government-furnished equipment rather than bring U.S. forces into the area of operations. n240 However, this area remains subject to debate. n241
n238 The DoD anticipates reducing its costs by approximately $ 10 billion over the next six years by opening some 230,000 federal jobs to competition with the private sector. See George Cahlink, Navy Expands Search for Job Cuts, FED. TIMES, Aug. 23, 1999, at 1.

n239 See id.

n240 See Palmer, supra note 237, at 8.

n241 See Eric A. Orsini, Contractors on the Battlefield: Risks on the Road Ahead?, ARMY LOGISTICIAN 130 (Jan.-Feb. 1999) (stating that "although many believe that contractor support in routine logistics functions can save the needed dollars to fund future modernization, there still are no empirical data to prove or disprove this assertion"); J. Michael Brower, DoD Outsourcing and Privatization, MIL. REV. 64 (Sept.-Nov. 1998) (noting that "savings generally remain inconsequential at best, anecdotal at worst"); Williams and Schandelmeir, supra note 2, at 34 (noting that "contractor wartime costs may outweigh peacetime savings").

One reason for the uncertainty is that cost comparisons between civilian contractors and service members are difficult. Unlike civilian workers, members of the armed forces frequently work long hours and weekends without overtime compensation. Indeed, during exercises, deployments, and armed combat, service members can and frequently do work to the point of physical exhaustion. Further, a service member's job is usually multifaceted. A cook in the Navy, for example, not only cooks, organizes the galley, and keeps the equipment clean, but also maintains other types of equipment, such as fire fighting equipment; responds to any damage that the ship sustains as a result of accident or enemy action; deploys for long periods of time; satisfies various military and leadership responsibilities unique to the armed forces; and performs all duties under life threatening conditions should the need arise. n242
n242 See Mark Butler, Don't Compare Civilian Salaries to Military; Jobs Are Different, NAVY TIMES, Aug. 9, 1999, at 50.

Ultimately, the greatest argument in favor of continued use of civilian contractors is that the military will have an extremely difficult time functioning effectively without them if it expects to meet its current worldwide commitments with existing assets. Despite its reduced size and budgetary constraints, the military operates at a high operational tempo. Although the military has experienced a 40 percent reduction since 1989, the current administration has sent the military on missions overseas more times than the two previous administrations combined. n243 In effect, the legislative and executive branches have asked the military to do more with less, and it appears that this trend will continue.


n243 "According to the Congressional Research Service, the Reagan administration used the military abroad seventeen times, while President Bush used the military fourteen times (including the Persian Gulf War). During the Clinton-Gore tenure, the military has been called on more than forty-five times, including the ongoing bombing of Yugoslavia." Senator Wayne Allard, Has Our Military Suffered from Too Much Downsizing?, MARINE CORPS TIMES, May 31, 1999, at 50.

[*265] Conversely, regular use of contractors poses a number of disadvantages for the armed forces. First, the reliance on contractors inhibits the development of an internal military capability to meet logistical needs. Military logisticians have fewer opportunities to plan and experience logistical support as contractors continue assuming more of the military's logistical functions. This reality, in turn, retards professional development of military logisticians. n244 Furthermore, the pool of retired and ex-military who are familiar with military procedures, systems, structures, and values, and from whom many contractors draw upon to fill their work force, will diminish as civilian companies gradually expand their hold on the military's logistical tail.


n244 See Orsini, supra note 241, at 132 ("Gone are the problem solving opportunities so critical in preparing senior logistics officers and NCOs. Gone are the hands-on training and real-world opportunities that gave most logisticians today the sound foundation to handle senior-level logistics decisions.").

Further, privatization and outsourcing will reduce or completely eliminate many classes of skilled military logisticians and technicians. To illustrate, the Air Force is considering contracting out for the calibration and repair of its precision test equipment. This work is currently performed almost exclusively by uniformed Air Force technicians. n245


n245 See John Pulley, Air Force Techs, Civilians Could Battle for Jobs, AIR FORCE TIMES, Apr. 26, 1999, at 10.

The uncertainty surrounding the likelihood that contractor employees will continue to perform in austere environments or life-threatening situations may be the single most important concern of outsourcing and privatization critics within the military. n246 Despite the favorable performance of contractor employees in such recent hot spots as Somalia, Kuwait, and Bosnia, contractors cannot be forced to continue logistical support once subjected to actual combat conditions, such as artillery, SCUD, or chemical weapons attack or the receipt of small-arms fire. Further, contractor employees may simply "quit," unlike their military counterparts, when field conditions become too difficult or dangerous, the weather too extreme, or the work too physically demanding. The end result is that military commanders must rely on contractual promises that civilian workers will remain in the event of hostilities. Unlike their military counterparts, contractor employees are not legally obligated to obey military orders, even in a combat zone, and do not face the prospect of criminal action for abandoning their duties when subjected to dangerous working conditions.


n246 See, e.g., Orsini, supra note 241, at 131 ("The issue facing us is not whether large defense contractors will continue to service the contract, but whether or not they will be able to keep their employees on the battlefield when and where needed."). See also FM 100-10-2, at 2-3 (noting "contractor personnel . . . might refuse to deliver goods or services to potentially dangerous areas, or might refuse to enter a hostile area regardless of mission criticality").

In a similar vein, unlike soldiers who perform similar support duties, most contractor employees are not trained for combat and cannot readily engage [*266] hostile forces without risking the loss of the POW status in the event of capture. The loss of a potential pool of combatants may prove a significant disadvantage to a hard-pressed commander fighting a casualty-intensive operation. In World War II, Korea, and Vietnam, support troops were frequently called on to defend equipment, base camps, and terrain, and to serve as replacements for combat units. n247 For example during World War II "clerks and technicians replaced infantry who were killed and combat service support personnel were reclassified to combat arms to make up for casualties." n248 In Vietnam, the Marine Corps followed its traditional philosophy that every Marine was a rifleman. n249 Clearly, civilian contract employees cannot serve as a military commander's "infantry in reserve." n250 Indeed, in some instances, commanders may be required to commit some of their limited forces to provide protection to contractors. In Somalia and Bosnia, for example, contractor employees frequently required an armed military escort. n251


n247 See Orsini, supra note 241, at 131. See also PAGONIS ET AL., supra note 154, at 48 ("At one point [in Vietnam], we decided to defend the firebase solely with logistics soldiers (cooks, truck drivers, supply personnel, and so forth), so that the fourth of our four companies could be sent into battle."); HOUGH ET AL., supra note 79, at 141 (recounting that during the World War II battle for Wake Island the defending Marines gathered "every headquarters, service, supply, or casual Marine . . . to form a final defensive line. . . ."); George R. Hofmann, Support Personnel in Combat, WASH. POST, July 12, 1999, at 14 (during the Vietnam War, cooks, supply clerks and drivers were used as infantry during the Tet Offensive, and in the Korean War, Marine headquarters and service troops were used to protect convoys during the Chosin Reservoir campaign).

n248 Orsini, supra note 241, at 131.

n249 In January 1968, the lawyers and legal staff of the Third Marine Division dug defensive fighting positions and defended a portion of the base camp's perimeter while it was being constructed. See SOLIS, supra note 44, at 19. This same staff was subjected to enemy mortar attacks and in one instance a trial was interrupted by such an attack, killing one of the court members (juror). See id. at 92. Because of a shortage of infantry officers, several Marine lawyers volunteered to temporarily serve as platoon leaders and company commanders. See id. at 93-94.

n250 Orsini, supra note 241, at 131.

n251 See Young, supra note 70, at 11 ("The threat level in Somalia was such that the LOGCAP contractor required a military escort nearly all the time; at various times, as many as twelve to eighteen marines or soldiers were assigned to escort duty."); Palmer, supra note 237, at 9 ("In times of heightened force-protection levels [in Bosnia], contractors serving base camps and traveling daily distribution routes required armed military escorts throughout the divisional area.").

Finally, military commanders generally lack authority to direct or change contract work. The authority to modify the contract is the province of the contracting officers and their representatives, such as the administrative contracting officer or the contracting officer's representative. n252 Unfortunately, many commanders are unaware of this limitation on their authority -- a limitation [*267] that runs counter to the military culture of command. For example, in Bosnia, a commander who was unaware of the ramifications of his actions ordered the contractor to accelerate work on construction of a base camp. The contractor had plywood flown to Bosnia from the United States because such material was in short supply in Europe. n253 As a result of the acceleration order, the cost of plywood increased from $ 14.06 to $ 85.98 per sheet. n254


n252 See FM 100-10-2, at 3-19. This was initially a problem in Bosnia. See Williamson, supra note 20, at 22 (noting that "problems developed when military leaders who were not familiar with the contracting process and the specifications of the sustainment contract attempted to direct the contractor to perform work").

n253 See GAO REPORT, supra note 25, at 18.

n254 Id.


XIII. Conclusion

The clear trend of the U.S. Government is to increase privatization and outsourcing of military support activities. This trend will increase the business opportunities for U.S. contractors and provide short-term relief to the armed forces from their current budgetary, political, and operational pressures. Unfortunately, any short-term advantages may ultimately be eclipsed by the long-term adverse ramifications for the military. Regardless, practitioners in this expanding area of the law should be cognizant of the myriad of legal issues that arise when contractors take the field.




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