U.S. Senators Introduce Bill to Regulate Wartime Contracting
Senators Claire McCaskill (D-MO) and Jim Webb (D-VA) have introduced the Comprehensive Contingency Contracting Reform Act of 2012 (S. 2139), a bill that will greatly enhance transparency, sustainability, and accountability in overseas contingency operation contracting by the Department of Defense (DoD), the State Department, and the U.S. Agency for International Development (USAID). The bill is a response to the recommendations of the Commission on Wartime Contracting in Iraq and Afghanistan.
Here’s a look at several of the good-government and contingency contracting reforms in the bill:
The bill requires that the Chair of the Council of Inspectors General on Integrity and Efficiency (CIGIE) select one of three current Inspectors General (IG)—DoD IG, State IG, and USAID IG—to lead oversight of contingency operations. That IG would be responsible for resolving conflicts of jurisdiction between the IGs, authorizing the employment of temporary auditors and investigators, and submitting to Congress a bi-annual report containing detailed information about its activities and the activities of the agencies engaged in the contingency operation. The bill would improve oversight of contingency operations by IGs, but it is less ambitious than the CWC’s recommendation for a permanent IG for contingency operations. Rep. John Tierney (D-MA) has introduced legislation that is closer to the CWC’s recommendation.
SUSPENSION AND DEBARMENT
DoD, State, and USAID will be required to have at least one independent suspension and debarment official, with adequate staff and resources, whose sole responsibilities are the direction, management, and oversight of suspension and debarment activities. The bill also calls for automatic suspension of contractors who are charged with criminal or civil contracting fraud or fail to pay or refund amounts due or owed to the government in connection with an overseas contingency operation. (The fact that the CWC’s automatic suspension recommendation last year generated such a firestorm of criticism both inside and outside the government doesn’t bode well for this particular provision.) Agencies will also be required to include more data about their suspension and debarment actions in reports they submit annually to the Interagency Suspension and Debarment Committee.
Overseas contingency contracts will be limited to three years in the case of competitively bid contracts, and one year in the case of non-competitively bid contracts or competitively bid contracts for which only one offer was received. Contracts will be limited to one tier of subcontractors. (Both requirements can be waived if the agency can certify that waiver is “in the best interests of the United States.”) Agencies will be required to provide justification in writing when soliciting a bid or proposal from only one source.
SECURITY SERVICE CONTRACTS
Every year, DoD and State will have to conduct a review and risk analysis of contractors’ performance of certain security functions to determine whether such performance is “appropriate and necessary.” The covered security functions include mobile security (protection of convoys), personal security (security escorts, personal security details), and static security (protection of fixed or static sites such as housing areas, reconstruction work sites, and government buildings and facilities). The bill prohibits contractors from performing these reviews and analyses.
COST AND PRICING DATA
The bills calls for the establishment of a database of information on the prices charged to the federal government for goods and services. This database will help acquisition officials conduct better pricing and cost analyses and price reasonableness determinations.
ANNUAL REPORTS ON CONTRACTOR SUPPORT
DoD, State, and USAID would be required to submit annual reports to Congress detailing all aspects of their contingency contracts, including the total number and value of contracts, the extent to which those contracts were competed, and the total number of contractor personnel.
Contractors would be required to consent to the jurisdiction of the U.S. District Court for the District of Columbia in cases of rape, sexual assault, serious bodily injury to, or wrongful death of a member of the U.S. armed forces, a civilian government employee, or a contractor employee who is a U.S. citizen or national. (Moved by the tragic story of Army Lieutenant Colonel Dominic “Rocky” Baragona, Senator McCaskill has been trying for years to pass this measure.)
The bill imposes a penalty of fines and/or up to five years imprisonment for anyone who engages in trafficking in persons (TIP). Overseas contingency contracts will have to contain a provision authorizing contract termination if the prime contractor, a subcontractor at any tier, or an agent employed by the prime or sub engages in TIP.
The Federal Awardee Performance and Integrity Information System (FAPIIS)
The bill makes clear that the term “any person” as used in the law creating FAPIIS also means corporations. FAPIIS information about a corporation will also have to include information about its parents, subsidiaries, and successor entities.