File Number: NPS-CM-06-090

Author: Richard L. Dunn

Title: Contractors Supporting Military Operations

Published: April 2006

Sponsored by: Acquisition Chair, Naval Postgraduate School 

Full Text URL: http://www.acquisitionresearch.net/_files/FY2006/NPS-CM-06-090.pdf

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Note: This paper is an except from the Proceedings of the 3rd Annual Acquisition Research Symposium.  

Abstract:

The author’s previous research surveyed issues and policies related to the trend toward increased reliance on contractors in combat and other contingency operations, documented relevant case studies, and, presented analyses and recommendations.  The current research presents a background summary and updates relevant policy developments since the earlier research. It then takes a distinctly different approach than the earlier study. Instead of trying to extract additional lessons from case studies of current events, this research attempts to gain historical perspective through case studies of earlier conflicts, primarily World War II. Rather than attempting to survey a catalog of issues, this research concentrates on a narrow set of issues.
The issues reviewed in this paper relate to the extent contractors can and should be made an integral part of the “mission team” in combat and contingency operations. If contractors have become integral to the success of combat and contingency operations, shouldn’t they be responsive and responsible to the commander formally charged with mission success? Expressed another way, can and should the concept of “unity of command” be applied to contractors in a combat theater? Assuming that contractors should be integrated into joint task force operations in a way that creates the essence of unity of command, how can that be accomplished?
The question of contractor control/unity of command can be relatively simply stated as suggested in the previous paragraph. This research found, however, that the path toward combatant commander control of contractors is complicated by divergent policies, conflicting belief systems, disconnections between policy theory and “on the ground” reality, and a variety of legal and regulatory hurdles.
A key aspect of the commander’s ability to control the forces in his theater, uniformed military or civilian contractor, is the ability to direct available forces to perform the most critical tasks when necessary. In a combat zone, the performance of critical tasks may involve activities that constitute or approach “direct participation” in combat. This is not an issue for uniformed military personnel; every soldier can be made a rifleman when necessary. However, civilians who directly participate in combat risk becoming illegal combatants under international law, compromise their potential status as prisoners of war, and potentially become subject to criminal sanctions. Civilian contractors may find themselves participating directly in combat because their contract work calls for such action (e.g., certain weapons system or security contractors) or due to exigent circumstances.
As pointed out in the author’s earlier work, there are a number of issues concerning contractors in combat scenarios that need to be resolved. Policy developments have addressed many of these issues in a variety of ways. Progress continues to be made in a number of areas. Recent developments have not, however, assured that the theater commander has effective control over contractor personnel in his area of responsibility. Current policy purports to prohibit direct participation in combat by contractors; but, there seems to be no rigorous method to ensure that contractors (either as part of contract work or due to exigent circumstances) do not actually participate in combat. Moreover, the concept of “direct participation” is not fixed in international law but is still evolving.
This research aims to examine both these areas and, if possible recommend policies and approaches that will assure that the theater commander and his subordinates effectively control civilian contractors that support them; and, that only uniformed military personnel will actually participate in combat. Both “participation” and “combat” itself may be more amorphous in a war on terrorism than in some other conflicts. A corollary to the commander’s control of the activities of contractor personnel is the concern that civilian contractors that are exposed to the risks of combat receive the same force protection, administrative support, and amenities afforded to soldiers under similar circumstances.

Keywords: combat and contingency operations, contractor personnel

About the Author:

Richard L. Dunn is currently an independent consultant and Senior Fellow at the University of Maryland. He conducts research and provides advice on business strategies to effectively develop and employ technologies in the military and civil sectors. Mr. Dunn retired from Federal service where he served as the first General Counsel of the Defense Advanced Research Projects Agency and was awarded the Presidential Rank of Meritorious Executive. He also served at NASA Headquarters and was on active duty as a Judge Advocate in the USAF for ten years. At DARPA, Mr. Dunn pioneered contracting using “other transactions” to increase the effectiveness of R&D and prototyping efforts. He is a member of the editorial advisory board of the Government Contractor. He has written extensively both in the area of government contracts and military history. Mr. Dunn is a graduate of the University of New Hampshire (cum laude), and has law degrees from the University of Maryland and George Washington University (Highest Honors). Mr. Dunn and his wife, Karen, reside in Edgewater, Maryland.

Richard L. Dunn
444 Poplar Leaf Drive
Edgewater MD 21037
Phone: (410) 798-0332
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The research presented in this report was supported by the Acquisition Chair of the Graduate School of Business & Public Policy at the Naval Postgraduate School.
 
To collaborate on Defense Acquisition Research or to become a research sponsor, please contact:
 
RADM James B. Greene, USN, (Ret), Acquisition Chair
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