Department of Defense Regulations and Instructions
The U.S. Department of Defense (DOD) has employed more private military and security contractors than any other U.S. government agency. As a result of the U.S. operations in Iraq and Afghanistan the number of military and security contractors used by the DOD increased dramatically. To manage contractors operating in a variety of capacities and theaters, the DOD has sought to enforce the terms of each specific employment contract. The contracts are classified, but the DOD has reported that each contains defined performance terms that can be used by DOD commanders to control contractor personnel. In addition to job responsibilities, contracts specify chain of command, weapons policy, guidance on the use of force, and terms for suspension and debarment. Example contract terms can be found in Appendix E to the DOD Handbook for Armed Private Security Contractors in Contingency Operations.
Throughout the last decade, the DOD has also implemented significant policy changes to standardize and improve its contract management and oversight, particularly for private security contractors. Notably, in August 2011, final rule 32 C.F.R. 159, "Private Security Contractors Operating in Contingency Operations" was issued. The rule addresses the selection, accountability, training, equipping, and conduct of personnel performing private security functions under a government contract. It also establishes procedures for incident reporting, rules for the use of force, and a process for administrative action against or the removal of PMSCs and their personnel.
Specific DOD offices within the Under Secretary of Defense for Acquisition, Logistics, and Technology—the Office of Program Support and the Office for Defense Procurement and Acquisition Policy—have also played particularly important roles. The Office of Program Support has participated in transnational regulatory efforts such as the Montreux Document and has lent DOD support to ASIS International's efforts to develop operational standards to be used in government contracts with private security companies.
In addition to the policy and regulations set forth in this section, there are a number of specialized government departments and Congressional committees that review and report on DOD policies, oversight and coordination of private military and security services. Reports from those departments can be found in the sections on U.S. Federal Research and Oversight Bodies and U.S. Congressional Committees.
Current Regulations and Ongoing Reform
Defense Federal Acquisition Regulation Supplement (DFARS)
Relevant procedures, guidance, and information that do not meet the criteria for inclusion in the DFARS are issued in the DFARS companion resource, Procedures, Guidance and Information (PGI). Unclassified, non-confidential memoranda, guidance, and other procurement-related policy documents can be found in the appropriate PGI subpart.
U.S. Department of Defense issues internal rules known as Directives and Instructions. Directives establish law and policy and delegates authority to DOD components. DOD Instructions implement the policy set forth in Directives. A vast number of Directives and Instructions are drafted because of statutory commands issued by Congress in the National Defense Authorization Acts. These, like many other DOD issuances, have binding legal effect, and therefore the DOD maintains a public website where new Department issuances are published. Note that Directives, Instructions, and other existing orders are often modified by DOD commanders in the field through Fragmentary Orders. Fragmentary Orders are used to communicate operational changes to all levels of command in a timely, uniform manner. They are largely classified.
When a DOD issuance may affect the public at large, the DOD will undergo the process of notice-and comment rulemaking. This process requires the DOD to give public notice of its intent to draft a specific rule. The DOD then accepts comments from the public on the proposed rule, and after consideration of all comments, publishes a final rule with explanatory notes in the Federal Register. To date, only one rule regulating private security activity has undergone the notice-and-comment process—32 C.F.R. 159, Private Security Contractors Operating in Contingency Operations. However, public comments were due on interim final rule 32 C.F.R. 158, Operational Contract Support in February 2012, meaning a final rule will be issued in due time. By visiting www.regulations.gov, you can see and comment on rules the Department of Defense and other Federal Agencies are proposing which may affect the public.
This interim final rule establishes policy and provides procedures for the integration of defense contractor personnel into contingency operations outside the United States. It also assigns responsibilities to DOD components for operational contract support program management and contract support integration. It is meant to procedurally close gaps and ensure the correct planning, oversight and management of DOD contractors supporting contingency operations by updating the existing outdated policy.
This Rule establishes policy and provides procedures for the regulation of the selection, accountability, training, equipping, and conduct of personnel performing private security functions under a contract during contingency operations, combat operations or other significant military operations. It also assigns responsibilities and establishes procedures for incident reporting, use of and accountability for equipment, rules for the use of force, and a process for administrative action or the removal of companies and personnel. For the DOD, this Rule supplements DOD Instruction 3020.41, "Contractor Personnel Authorized to Accompany the U.S. Armed Forces'', which provides guidance for all DOD contractors operating in contingency operations.
This directive was created to revise the AI clauses to reflect the end of mission for US Forces in Iraq, and the transition from a DOD to a DOS mission. As such, the language and dates were changed to reflect this transition.
This Directive establishes DOD policy for carrying of firearms and the use of force by DOD personnel engaged in security, law and order, or counterintelligence activities. Among others, it applies to DOD contractors (U.S. persons or non-U.S. persons) required to carry a firearm in accordance with applicable U.S. laws or host nation laws or international agreements. Armed personnel must have undergone a background check and be properly trained by the DOD at least every 12 months. Particularly interesting are the provisions related to the use of force, including lethal force, and prohibitions on warning shots and using firepower to disable a moving vehicle.
This Directive states that the Under Secretary of Defense for Acquisition, Technology and Logistics must establish policies and procedures that ensure all DOD activities are fully compliant with arms control agreements to which the U.S. is a party and, with other DOD components, ensure that audit and oversight of contractor activities are coordinated and carried out to prevent duplication. This Directive also delegates to the Under Secretary for Defense Acquisition the authority to act for the Secretary of Defense in the exercise of authority under the FAIR Act of 1998 and in the implementation of OMB Circular A-76.
This Directive establishes policy to ensure persons detained by the DOD are held in compliance with U.S. laws, the law of war, and all other applicable DOD issuances. It applies to DOD contractors assigned to or supporting detainee operations, among others. In addition to setting out DOD detention policies and procedures, this Directive requires all DOD contracts pursuant to which contractor employees might interact with detainees to include a requirement that contractor employees receive training on international obligations and U.S. laws applicable to detention operations.
This Directive-Type Memorandum establishes business rules for use in estimating and comparing the full costs of military and DOD civilian manpower and contract support. It is to assist the DOD in deciding whether to outsource functions to contractors. It is set to be converted into a new DOD Instruction, and will thus expire on October 1, 2012.
This Directive updates the mission, organization and authorities of the DCAA. The DCAA shall perform all necessary contract audits for the DOD and provide accounting and financial advisory services regarding contracts and subcontracts. In the execution of its duties, the DCAA must report incidents of suspected fraud, waste, and abuse to the appropriate authorities.
This Directive addresses the appointment and retention of civilian employees and contractor personnel in sensitive positions at the Department of Defense, and aims to ensure individuals in such positions in which they could potentially damage national security are properly vetted.
This Directive sets out the policy that military objectives should be accomplished with the minimum of manpower needed to provide maximum effectiveness and combat power. Assigned missions shall be accomplished using the least costly mix of personnel (military, civilian, and contract) with the caveat that inherently governmental functions shall not be contracted.
On October 17, 2006, the Uniform Code of Military Justice (UCMJ) was amended to extend UCMJ jurisdiction over persons serving with or accompanying U.S. armed forces in the field in times of declared war or a contingency operation. This Directive-Type Memorandum provides additional guidance to commanders on the exercise of their UCMJ authority during contingency operations by summarizing some of the commanders authority available when a crime is committed within that commanders geographic area of responsibility outside the U.S. It expired on January 1, 2012.
This Directive addresses DOD policies related to interrogations of captured or detained persons. It applies to DOD military, civilian, and contractor personnel. Only personsincluding contractorswho are properly trained and certified to DOD standards and humane treatment standards may conduct interrogations. Moreover, DOD contractors may not conduct or support interrogations unless specified by the DOD contract, and regardless of the contract terms, DOD contractor personnel will not be placed in charge of interrogation operations or interrogation facilities.
This Directive sets forth policies and responsibilities to ensure DOD compliance with U.S. laws of war obligations. It states that the laws of war obligations of the United States are to be observed and enforced by DOD components and DOD contractors assigned to or accompanying deployed Armed Forces. To ensure compliance contracts are required to institute and implement effective programs to prevent violations of the law of war by their employees and subcontractors, including law of war training and dissemination. Moreover, all contractor personnel and subcontractors assigned to or accompanying a DOD Component shall promptly report violations or incidents to the commander of the unit they are accompanying or the installation to which they are assigned.
This Directive applies to DOD agencies that support military combat operations and dictates that when such agencies use contractors the contractor must ensure that these contracts and contractors meet the requirements of DOD Instruction 3020.37 (Reference (f)) and ensure that contractor personnel are properly trained or otherwise prepared to meet the mission and theater requirements.
This Instruction seeks to provide uniform baseline safety standards for DOD contractors performing work involving ammunition and explosives. The objective is to reduce the potential for, or affects of mishaps that may disrupt DOD operations, injure DOD personnel or endanger the public. The accompanying Manual DOD 4145.26-M must be incorporated into any DOD contract involving ammunition and explosives in order to legally bind the contractor to the provisions contained therein.
This Instruction sets forth requirements for investigations into mishaps that result in damage to DOD property or injury or occupational illness to DOD personnel. All procedures of this Instruction apply to investigations involving contractors. However, contractor mishaps in which the contractor employee is not under the direct supervision of DOD personnel are exempt from the requirements of this Instruction.
This Instruction establishes policy and assigns responsibilities for combating trafficking in persons (CTIP). Among other requirements, the Office of the Under Secretary of Defense for Personnel and Readiness must collect data to compile an annual report on DOD contractor adherence to DOD CTIP policy. Note that DOD Instructions do not require contractors to train their personnel on CTIP.
This Instruction implements DOD policy and procedures to provide reasonable assurance of the continuation of essential services provided by DOD contractors in crisis situations. Among other provisions, it strengthens the training requirements for contractors by ensuring civilian contractors are given appropriate cultural awareness training for the theater if it is being provided to military personnel.
This comprehensive Instruction implements DOD policies and assigns responsibilities to DOD components related to exercising extraterritorial criminal jurisdiction over civilians employed by or accompanying the U.S. Armed Forces outside the United States pursuant to the Military Extraterritorial Jurisdiction Act (MEJA).
This Instruction establishes policy and procedures for the selection, accountability, training, and conduct of personnel performing private security functions under a covered contract during contingency operations, humanitarian or peace operations, or other military exercises. It also establishes procedures for incident reporting, use of and accountability for equipment, rules for the use of force, and a process for administrative action or the removal, as appropriate, of PMSCs and PMSC personnel. This Instruction applies to the Department of State and other U.S. Federal agencies in areas of operations which require enhanced coordination of PMSC personnel working for U.S. Government agencies.
This Instruction establishes policy, assigns responsibilities, and prescribes procedures for determining the appropriate mix of manpower (military and DOD civilian) and private sector support for DOD components. It reiterates the rule that inherently governmental functions cannot be contracted and provides standards to determine what tasks are inherently governmental, including when and whether security provided to protect resources and operations is an inherently governmental or commercial job.
This Instruction sets forth DOD policy, reporting requirements, and follow-up procedures on contract audits conducted by the Defense Contract Audit Agency. Findings and recommendations contained in contract audit reports shall be resolved in a timely manner and DOD Components shall maintain complete, accurate, and up-to-date records of actions taken to resolve and dispose of reportable audit findings and recommendations.
This Instruction establishes policies and assigns responsibilities for receiving, reporting, and investigating contractor disclosures of a violation of Federal criminal law involving fraud, conflict of interest, bribery, or gratuity violations in connection with the award, performance, or closeout of any contract or subcontract.
This Instruction establishes policies, procedures, and responsibilities for the coordination of criminal, civil, contractual, and administrative remedies stemming from investigations of fraud or corruption related to DOD procurement activities.
This Instruction sets forth DOD policy related to stability operations, and notably requires the specified DOD components to develop and recommend policy and provide guidance that specifies the roles of private security contractors, firms, and other DOD contractors in stability operations environments.
Handbooks and Non-Binding Guidance
Department of Defense handbooks provide non-binding guidance to DOD components. DOD handbooks differ from manuals, as manuals implement or supplement a directive or policy instruction, and are not issued unless expressly authorized by a DOD directive or instruction. The handbooks that appear below provide guidance to U.S. military commanders and staff on procurement of, and interaction with, private military and security service providers, and aim to aid U.S. military personnel understand the laws and policy related to the planning, employment, management, and oversight of contractors involved in U.S. military operations.
This publication establishes doctrine for planning, conducting, and assessing operational contract support integration and contractor management functions in support of joint operations of the Armed Forces of the United States and U.S. military involvement in multinational operations. It provides standardized guidance and information related to integrating operational contract support and contractor management, defines and describes these two different, but directly related functions, and provides a basic discussion on contracting command and control organizational options. This joint publication does not pertain to contracting support of routine, recurring (i.e., noncontingency) DOD operations.
This guide provides Theater Business Clearance (TBC) and Contract Administration Delegation information, guidance and instructions for those writing support contracts which require contractors to deploy to Kuwait. TBC is the process which provides Joint Force Commanders and the CENTCOM Contracting Commander visibility over all contracts and contractors performing work in their area of responsibility. TBC facilitates a common operating picture of contracted support in an area and ensures that solicitations and contracts contain provisions to meet militarys requirements. The Guide includes a list of mandatory clauses to be included in each contract, and many address security contractors and/or armed contractors.
In the second of a two-part series, Colonel LeDoux moves forward from the initial discussion of LOGCAP's objectives and limitations and into a more detailed analysis of the operational planning with LOGCAP. The article covers planning and execution processes that facilitate effective implementation of LOGCAP, and also presents the author's recommendations for improving the current operational-level LOGCAP doctrine.
In the first of a two-part series, Colonel LeDoux discusses the current objectives, legal limitations and procedures of the LOGCAP program for the Army. The article covers the exact areas that LOGCAP contracts cover in support of Army field operations, and the Commander's role to oversee and implement the contract.
This Army Regulation (AR) established the LOGCAP program for augmenting the Army with civilian contractors. The regulation seeks to provide the Army with a pre-planned method for selecting and using civilian contractors to meet shortfalls in its capability. The document outlines the policies and planning of LOGCAP, when it should be implemented, and the procedures for awarding contracts.
This guide provides Theater Business Clearance (TBC) and Contract Administration Delegation information, guidance and instructions for those writing support contracts which require contractors to deploy to Pakistan. TBC is the process which provides Joint Force Commanders and the CENTCOM Contracting Commander visibility over all contracts and contractors performing work in their area of responsibility. TBC facilitates a common operating picture of contracted support in an area and ensures that solicitations and contracts contain provisions to meet militarys requirements. The Guide includes a list of mandatory clauses to be included in each contract, and many address security contractors and/or armed contractors.
This Contracting Officer's Representative (COR) Handbook addresses key aspects of contract quality surveillance and the roles and responsibilities of the Contracting Officer, and the COR. The federal government relies on private contractors and spends large amounts on them, thus effective contract surveillance is a crucial aspect of DOD operations.
The Defense Contingency Contracting Handbook provides a consolidated source of information for Contingency Contracting Officers who provide forward contracting support to ongoing U.S. war zone and humanitarian missions worldwide. The Handbook addresses cultural and situational awareness; contract processes; contract administration; and claims, disputes, and appeals processes.
The goal of this handbook is to provide Contingency Contracting Officers (CCOs) a guide, so they may perform their job - locally acquiring the items needed to support U.S. government missions - without violating U.S. codes of conduct or ethics and avoiding fraud, waste and corruption. This handbook is an update to the Defense Contingency Contracting Handbook of 2010.
This guide provides Theater Business Clearance (TBC) and Contract Administration Delegation information, guidance and instructions for those writing support contracts which require contractors to deploy to Iraq or Afghanistan. TBC is the process which provides Joint Force Commanders and the CENTCOM Contracting Commander visibility over all contracts and contractors performing work in their area of responsibility. TBC facilitates a common operating picture of contracted support in an area and ensures that solicitations and contracts contain provisions to meet militarys requirements. The Guide includes a list of mandatory clauses to be included in each contract, and many address security contractors and/or armed contractors.
This handbook provides the U.S. military commanders and staff with an understanding of laws and policy related to the planning, employment, management, and oversight of Armed Private Security Contractors during contingency operations. While the focus of this handbook is on contingency operations, most of the limitations and challenges presented concerning private security contractors are applicable universally.
Synchronized Predeployment and Operational Tracker (SPOT)
The Synchronized Predeployment and Operational Tracker (SPOT) is a web-based database used by the U.S. government to manage and track contracts and contractors supporting U.S. Government agencies during contingency operations. SPOT was created in accordance with Section 861 of the 2008 National Defense Authorization Act which provides that the Secretary of Defense, the Secretary of State, and the Administrator of USAID must agree to adopt a common database for contractors in Iraq and Afghanistan.
The SPOT system is used to capture data relating to logistics, operations, planning, and reporting of contractor status and capabilities. It serves several practical purposes: it allows contractors to request and receive specific logistics support such as meals, housing, transportation, medical support while working in-country; it provides the government with information on what contractor employees are working in what locations which makes approval of invoices and inspection of work easier; it tracks contractor operated armored vehicles, helicopters, and other equipment; it allows the government to review the credentials of individuals requesting the authority to carry weapons (either government-furnished or contractor-acquired) in the performance of a U.S. government contract or grant; and it allows agencies to report to Congress and other oversight organizations on the size of contractor and grantee presence in areas of combat operations or other significant military operations.
The SPOT system does have limitations. SPOT is not used for intelligence gathering or vetting of personnel. Background checks of PMSCs are conducted by the contractor and validated by the contracting officer, and only this validation is annotated in SPOT. Most notably, the SPOT database has been used by the U.S. government to collect contractor data working for named military operations only, and SPOT is not yet used to track all government use of private security or other contractors.
SPOT data is not available to the public.
To learn more about SPOT, visit the SPOT website or review the Business Rules for the Synchronized Predeployment and Operational Tracker published in 2010.
Related Resources on Continuing DOD Oversight Challenges
This report is submitted in response to section 835 of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011. The report covers a number of issues including the total number of contracts awarded in Iraq and Afghanistan, the total number of active contracts, the total value of all contacts, and the total number of contractor personnel working on contracts at the end of each quarter of the reporting period.
This report to Congress was submitted in response to the National Defense Authorization Act of 2010, and serves as an update to the 2008 report on contractor services in contingency operations. The report describes the initiatives that have been put in place since 2008 and their ability in improving contingency contracting.
This report is submitted in response to section 835 of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011. Under section 835, the Secretaries of Defense and State and Administrator of USAID are required to provide annual updates to Congress on a number of issues, including the total number of contracts awarded in Iraq and Afghanistan; the total number of active contracts; the total value of all contracts; and the total number of contractor personnel working on contracts at the end of each quarter of the reporting period. In this report the agencies claim to have standardized their information-gathering and reporting methods in response to criticism from the Government Accountability Office. The agencies note that contractor compliance in reporting casualty data through the Synchronized Predeployment and Operational Tracker (SPOT) continues to be a challenge. In response, the agencies reported killed and wounded data in a consolidated manner using the Department of Labors Office of Workers Compensation (OWCP) Defense Base Act (DBA) Case Summary Report.
This report is submitted in response to Section 835 of the Ike Skelton National Defense Authorization Act for FY 2010. The report covers a number of issues including the total number of contracts awarded in Iraq and Afghanistan, the total number of active contracts, the total value of all contacts, and the total number of contractor personnel working on contracts at the end of each quarter of the reporting period.
This report to Congress was submitted in response to the National Defense Authorization Act of 2007. The report discusses the progress that DOD has made in planning, managing and accounting for contractor practices. These plans include six major initiatives in the field of governance, a joint contract support office, joint contract planners, the SPOT tracker, training programs, and a lessons learned program.
Mandated by section 807 of the 2008 National Defense Authorization Act to require DoD to provide an inventory estimate of all service contracts awarded during the previous year. This report provides a summary table of all contractors and contract spending by the DoD for FY 2011. A more detailed breakdown of the contractors is not currently available