How are vendors used in military conflicts?

The following topic is raised periodically by contracting professionals: Are there any restrictions on the use of contractors during war? Are there any rules on the employment of contractor personnel in military theaters? How are contractors used in military conflicts?

Interest in this issue picks up when the United States is involved in a military operation, and the topic has become increasingly important as the military relies more heavily on contractors. Until recently, there was little explicit guidance in this area. However, some clear instructions have been promulgated during the past few years.

In 1990, the Defense Department published DOD Instruction 3020.37, "Continuation of Essential DOD Contractor Services During Crises," to establish policy in this area. According to the instruction, military components will rely on the "most effective mix" of active and reserve duty uniformed forces, civilian employees and contract resources necessary to fulfill assigned peacetime and wartime missions, with "cost and other factors considered."

Contractors providing services that are designated as essential by a DOD component are to "use all means at their disposal to continue to provide such services, in accordance with the terms and conditions of the contract during periods of crisis, until appropriately released or evacuated by military authority," according to the instruction.

Additionally, the instruction requires the promulgation of specific "theater admission procedures" before contractor employees can be allowed into a possible theater of military operations. According to the instruction, these procedures must address such things as training, protective gear, immunizations, cultural awareness, identification cards, security requirements, casualty notification, and medical and dental care.

Other guidelines have been established by the military departments and by some of their components. For example, the Army published its first official policy statement on the use of contractors on the battlefield in a Dec. 12, 1997, policy memorandum, which was included as Appendix F to Army Field Manual No. 100-10-2, "Contracting Support on the Battlefield." Although short, the memorandum contributes significantly to the available information by drawing a clear distinction between war and "military operations other than war" (MOOTW). "Contractor employees accompanying U.S. armed forces may be subject to hostile action. If captured, a contractor's status will depend upon the type of conflict, applicability of any relevant international agreements and the nature of the hostile force. The full protections granted to prisoners of war under the Geneva (1949) and Hague (1907) conventions apply only during international armed conflicts between signatories to those conventions. Accordingly, these conventions are generally not applicable during MOOTW. Therefore, contractor employee protection during MOOTW will depend on the specific circumstances of an operation."

Last year, the Army published the "Contractor Deployment Guide," Pamphlet No. 715-16, to provide additional guidance. The pamphlet differentiates between DOD civilian employees, who operate within the same military command and control structure as uniformed personnel while in theater, and contractor employees, who may be directed only through normal contracting channels.

The pamphlet also notes that the government "may issue sidearms to contractor employees for self-defense" in certain circumstances. Although it is not mentioned in the pamphlet, it should be noted that government agencies may not contract with organizations that offer quasi-military armed forces for hire. This restriction is found in the Anti-Pinkerton Act (5 U.S.C. & Sect; 3108), which prohibits contracts with "Pinkerton detective agencies or similar organizations." The issuance of sidearms to contractor employees would not appear to violate this law as long as it was clear that the weapons were for self-defense only.

In January, the Army promulgated the regulation "Army Contractors on the Battlefield," Army Regulation No. 715-XX, to address logistical issues related to the presence of contractor employees in theater. The regulation states that all Army-sponsored contractor employees in an area of operation will be designated to a military unit to maintain administrative oversight and accountability. Among other things, the regulation also provides for an Army chaplain to support contractor employees and for mortuary services.

The Army also published "Contingency Contracting," Army Federal Acquisition Regulation Supplement Manual No. 2, to guide government contracting professionals in executing their responsibilities on and near the battlefield. AFARS Manual No. 2 emphasizes the advantages of advance planning to the maintenance of normal procedures in exigent circumstances.

The other military services do not seem to have made as much progress as the Army in establishing standing rules on the use of contractor employees in conflicts. Instead, it would appear that commanders have to promulgate guidelines on a more ad hoc basis. The other services should consider following the Army's lead in this important area.

--Peckinpaugh is a member of the government contracts section of the law firm Winston & Strawn, Washington, D.C.