Contingency Contracting Authority and Structure in the DoD

Introduction and Background

Contingency contracting refers to obtaining services, construction, and supplies through contracting means to support contingency operations. It is a significant component and a force multiplier in achieving Operational Contract Support (OCS) of the objectives laid down. The OCS is primarily responsible for planning and obtaining construction, services, and supplies to support the combatant commander — operations conducted through the necessary support integration, contractor management functions, and contracting support. Contingency contracting is carried out by contracting officers who have the legal authority to administer, terminate, enter into, or modify contracts under the authority given to the services, functional combatant commands, and combat support agencies (CSAs). This follows the guidelines and principles established in the Federal Acquisition Regulation (FAR), the Service FAR supplements, applicable contingency contracting Acquisition Instructions (AIs), and the Defense Federal Acquisition Regulation Supplement (DFARS) (Travieso et al., 2010). Additionally, contingencies such as domestic or international disaster relief, peacekeeping, humanitarian missions, and regional conflicts mandate that military forces are deployed immediately.

This deployment of military assets and members necessitates supporting assets like the Contingency Contracting Officers (CCOs) (Kirstein, 2015, p. 105). Therefore, understanding the contingency contracting authority — including both contracting authority and command authority — as well as the contingency contracting structure, is an essential aspect of effective contract management that, in the long run, helps promote operational efficiency and lowers the accrual of risk and other uncertainties. The Department of Defense (DoD) has, over the years, made significant steps toward improving contingency contracting operations. For example, contingency contracting operations began maturing during the Korean War, when CCOs leveraged local Korean and Japanese vendors to provide support through local procurement (Russell, 2012). This reduced the need for flying shipments from the United States. During the Cold War, the DoD developed and implemented logistics reductions and significant support personnel cuts, resulting in increased reliance on contractor support.

Unfortunately, contractor support alone is never sufficient for the success of a contingency mission, as identified by the Commission on Wartime Contracting report. Despite being critical, contractor support is mainly conducted in an ad hoc manner and is inadequately incorporated into the doctrine and culture of the United States military. In light of this, there is an identified need for the DoD to ensure that contingency contracting structures and command authority are clearly defined, so that each party understands the extent and nature of their control. The CCOs must be aware of and understand the organizational construct within which they work and their mandated contracting authority. This paper discusses the legal authorities of the CCO, differentiates between contracting authority and command authority, and offers insight into the contracting structure, organizational support options, joint staff, and JTSCC staffing. It further establishes why understanding contracting structure and command authority is important for effective contract management. The findings of this paper can also be applied in disaster relief and humanitarian situations (Russell, 2012).

When military members and other military assets are deployed on a mission — such as peacekeeping missions or regional conflict missions — supporting assets like the CCOs must also be concurrently deployed. However, contingency contractor support alone is never enough. Different researchers have carried out studies to determine the best and most effective contract management practices, one of which is ensuring that CCOs are made aware of and understand their legal authorities and organizational structure. According to the Defense Contingency Contracting Student Handbook by Travieso et al. (2010), clear command and contracting authority are essential components of success in contingency contracting. The handbook mandates that CCOs understand their legal authority and organizational structure in order to discharge their duties appropriately and efficiently in support of military combatants. A study conducted by the RAND Corporation that analyzed the effectiveness of United States Air Force contingency contracting supports this position (O'Farrell, 2019). According to that report, establishing clear guidelines regarding authority and structure — and ensuring they are clearly understood — is critical because it allows contingency contracting operations to run smoothly.

Literature Review

O'Farrell (2019) further indicates the crucial need for contracting officers to know, understand, and accept the stipulated contract structure and command authority. He also provides evidence that doing so, beyond increasing efficiency, helps ensure accountability, lowers the risk of fraudulent activity, and ensures transparency. According to Russell (2012), establishing and understanding contingency contracting authority and structure is crucial for mission success because it creates clear stipulations about what contracting officers are expected to do, what they should buy, how they should purchase products and services, and the contracting instruments that must be used — including vendor contracts, blanket purchase agreements, and purchase orders, among others. Russell (2012) further supports the positions advanced by O'Farrell (2019) and Travieso et al. (2010), writing that with positive interactions between the DoD and the CCOs, the DoD should ensure that contracting structures and command authority are stipulated to help CCOs adequately understand their legal authority and its limits. He also notes that well-stipulated command authority and structure can, to a large extent, lower or eliminate conflicts that might occur between CCOs and their partners and other stakeholders, thereby creating more positive interactions.

A clearly defined authority and structure can additionally serve as a conflict-resolution policy should the need arise, since acquisitions and purchases are clearly stated. These literature reviews are further supported by McMillon (2017), who examines in detail the nature of CCO dealings as far as their responsibilities are concerned, and how clearly stipulated contracting authority, structure, and policy requirements affect those dealings. According to McMillon, requests for supplies and services during a contingency are typically urgent, and any delay in fulfilling requirements can have severe consequences on the morale and effectiveness of military agents — two critical factors in mission accomplishment. It is therefore prudent for such policies to be laid down clearly. Moreover, contracting officers must always ensure that they know and understand the applicable requirements and prohibitions, particularly those concerning cost-plus percentage arrangements, in order to avoid issues that might result in conflict.

Furthermore, every DoD unit must delegate responsibilities to the CCOs before their deployment as early as possible. The most effective way to accomplish this is through clearly stipulated guidelines and requirements, which helps avoid time wastage — given the urgency these situations typically demand — and prevents misunderstandings.

Contracting officers are legally authorized to make or enter into binding contracts on behalf of the United States government and to make other commitments that obligate funds. According to the guidelines stipulated in the FAR, they are the only authorized personnel with the legal authority to terminate, administer, or enter into a contract. They are also the only authorized personnel to designate field ordering officers (FOOs) and ordering officers. The CCO must always ensure that FOOs clearly understand their authority and its limitations as provided.

Findings: Contracting Authority vs. Command Authority

Command authority, by contrast, is the responsibility and authority for using available resources effectively and efficiently, and the authority to plan the direction, organization, control, coordination, and employment of military assets or forces to accomplish assigned missions. Command authority does not include the authority to make binding contracts or to modify existing ones on behalf of the federal government. However, this type of authority directly governs how contracts are incorporated into planning for contingencies, peacekeeping operations, and humanitarian missions. It further consists of commanding authority over how contracts are intended to support the mission and the warfighter as a force multiplier.

As established by the literature review, understanding contract structure and command authority is a crucial aspect of contract management because it supports accountability and transparency and helps avoid fraudulent practices. It has also been found to foster positive interactions between the DoD and the CCOs, since the guidelines regarding what CCOs should do or purchase are stipulated and documented. A clearly defined authority and structure also helps minimize potential conflicts because every provision is laid down clearly. The literature reviewed further supports the idea that understanding structure and authority aids in conflict resolution, since the stipulated policy can itself serve as a conflict-resolution instrument when needed.

The Special Operations Command (SOCOM) lacks the staff to support global contingency operations. As a result, SOCOM's complete services include contract assistance for standard logistical and administrative requirements (McMillon, 2017). CCOs are therefore mandated to be aware of the activities that support special operations, since these have unique considerations. Command authority must not be misused; everyone who has been granted authority must also be aware of its limits. Commanders and contracting officers must avoid improper influence on CCO responsibilities, particularly in the acquisition process. CCOs are also afforded the legal right to exercise unbiased and sound business judgment and contract oversight to accomplish their mission independently.