Contractual Error

The Washington Post reports that private contractors have played a role in alleged detainee abuses at Guantanamo, sometimes even directing Army personnel to perform such abuse. This information was obtained from a 2004 survey of FBI agents who visited the detention facilities and is the latest addition in a long series of reports on contractor misconduct.

If the allegations are true, the Dept. of Defense would be in violation of Subpart 7.503(c)(3) and (7) of the Federal Acquisition Regulations, which states that direction of federal employees and military forces is an “inherently governmental function” not to be performed by contractors.

These episodes of misconduct shed light on fundamental questions about the proper role of private contractors in service to the federal government. The WaPo article states:

Taken together, the documents suggest a greater role for contractors than was previously known, and contracting experts said they indicate a further blurring of the limits on how much responsibility the private sector can carry in doing the public's work.

"These are incredibly sensitive and important government jobs. That's why you're supposed to have a very clear and public chain of command," said Brookings Institution scholar Peter W. Singer. "But now there's a confusion about proper roles."

A Defense Department official yesterday denied that contractors are supervising military personnel at Guantanamo. "As contractors cannot issue orders to military personnel, military personnel are not required to obey orders from a contractor," said Navy Cmdr. Robert Durand, a spokesman for Task Force Guantanamo.

The issues of responsibility and oversight lie at the core of government relations with contractors. For instance, are private security forces in Iraq bound by the same codes of conduct that govern US military forces?

Peter Singer highlights this debate for DefenseTech and argues that a new provision of the FY 2007 defense budget could force security contractors in Iraq and Afghanistan to comply with the Uniform Code of Military Justice. However, security contractors outside of conflict areas, such as those at Guantanamo, would still remain outside the bounds of legal obligation.

When one also considers the lack of clear guidelines on which government functions can or cannot be handed to contractors, their increasing responsibility and often-unchecked misconduct should give even greater cause for alarm. Where do the boundaries exist between basic government responsibilities and contractor services? At what point does providing services, support, assistance, and evaluation become shaping and determining policies and priorities?

A veteran of the State Department raised this very concern in a Tuesday letter to the Washington Post. Referencing the corporation BearingPoint’s relationship with the State Department, he argues:

…these look like normal functions of responsible government agencies; they're not technical or advisory services that can be "privatized" without compromising the integrity and accountability of the process itself. Is the State Department bureaucracy (the Bureau of Intelligence and Research, for example) not competent to carry out these routine functions? Are contractors playing similar roles in other ostensibly internal policy and public relations operations in the State Department and other sensitive areas of government?

Consider the case of BearingPoint. A UPI article last week stated that the company is privately negotiating federal oil law in Iraq with Shiite, Sunni, and Kurdish leaders. This appears to be far more than a mere assistance or service role, yet nothing indicates that BearingPoint should take on or is capable of handling this responsible.

For instance, In 2004 a Florida newspaper reported that BearingPoint had not only failed at a computer services project for the Bay Pines VA Medical Center, but two US Senators were also criticizing a new contract with the Dept. of Homeland Security. Just prior to the DHS contract, the state of Florida had also cancelled a contract with BearingPoint and Accenture due to “questions over how the two companies had won the lucrative contracts.” The former state technology officer, Kim Bahrami, who had awarded the contracts, later went to work for BearingPoint.

Despite BearingPoint’s questionable track record, it’s now entrusted with operating the US Embassy’s website in Iraq, managing the administration’s Iraq policy, and negiotiating oil law? This just doesn’t add up. The sad truth is that it nevertheless represents a widespread problem in government privatization. Congress has a duty to guarantee sufficient oversight and accountability for how public funds are spent.

-- John Pruett