The 413th CSB works to strengthen teamwork between CCOs and attorneys—a relationship that’s becoming more important as the military’s operational focus shifts to the Pacific.
by Capt. James S. Kim
In tomorrow’s ever-shrinking world, U.S. forces will have a continually evolving mission to provide full spectrum military operations across the globe. It is in this dynamic atmosphere that contingency contracting officers (CCOs) find themselves with the unenviable task of juggling the dual missions of supporting garrison contract operations while always maintaining readiness to deploy to a forward area in support of expeditionary, contingency and training operations. In the unique and unpredictable atmosphere of deployed operations, continued and reliable reachback legal support is paramount to mission success.
In the complex area of operations encompassing the Pacific theater, there is a constant flow of missions, training exercises, humanitarian aid and disaster relief, all going on across more than a dozen countries. As the primary contracting mechanism for the U.S. Army Pacific, the 8th Theater Sustainment Command and the 25th Infantry Division, CCOs from the 413th Contracting Support Brigade (CSB) provide contracting support to more than 25 overseas missions, training exercises and key leader engagements in any given fiscal year.
Unlike the established processes and systems for Operation Iraqi Freedom and Operation Enduring Freedom, the high operational tempo environments of the Pacific pose a unique set of challenges. These missions and exercises, such as Lightning Strike, Angkor Sentinel, Pacific Pathways and Khaan Quest, demand the same end results as a garrison contracting office, but with a severely truncated timeline, limited resources and language and cultural barriers.
CCOs must operate within local acquisition customs and methods and navigate the cultural and legal nuances of each country, while maintaining the strict standards of the Federal Acquisition Regulation (FAR) and the ethical, fiscal and legal requirements of the contracting realm.
With deployed contracting, an additional set of rules and requirements comes into play, along with all the garrison regulations. CCOs, together with their advising contract attorney, must identify and address a plethora of other potential issues that could affect a requirement. CCOs are forced to not only think outside the box, but do so while expanding their box of knowledge.
‘FAR’ FAR AWAY
Factors that are nonexistent in a garrison setting take on an entirely new meaning overseas. Which appropriation will pay for the contracts? Are there any acquisition and cross-servicing agreements (ACSAs) in play, and do they influence the nature of the requirement? What are the implications of neglecting to include the Defense Base Act insurance clause? Is the vendor base capable of financially supporting our contracts, knowing that payment cannot be made until performance? In addition to assessing the effects of operational contract support on a local economy, a CCO must also be wary of the legal and ethical implications of overseas contracting.
Although all CCOs are well-versed in the basic tenets of the FAR, it is the contract attorneys who thrive on deciphering this massive tome. In a garrison setting, the attorneys are involved in every aspect of acquisitions, from the acquisition strategy plan to award and beyond. Unfortunately, the sheer volume of operations coupled with the limited number of attorneys make this level of involvement neither possible nor practical in the forward deployed environment of the Pacific.
Moreover, it would not be fiscally responsible to send an attorney on every overseas operation or training mission. Therefore, each CCO is presented with the challenge of bridging the requirements of the mission with the FAR, while receiving reachback legal support from attorneys thousands of miles away to ensure that he or she is providing the same standard of legal advice and support that’s offered in garrison.
ACTIVE MEMBERS OF THE CONTRACTING TEAM
The 413th CSB is constantly vigilant in its goal to inject and embed contract attorneys with its contracting teams (CTs). With four attorneys spread across three offices in Hawaii and Alaska, the goal is to provide face-to-face legal advice whenever practical, including contingency contracting. Each mission is assigned to a designated contract attorney who serves as the primary legal adviser.
This begins with the planning and solicitation phase in garrison, providing instant reachback support when the CTs are forward, and concludes with the successful completion of the mission. The intent in providing each CT with its own dedicated attorney is multifaceted. It provides the CCO a single point of contact to reach back to in the event that immediate legal advice and guidance are required. Furthermore, the assigned attorneys are familiar with the mission, the requirements and the contingencies that will undoubtedly arise.
Even the simplest aspects of contracting have a tendency to become complicated in an overseas environment. With different “colors” of money, cultural and business differences, unique requirements and ethical issues contributing to an already constantly evolving situation, CCOs know to seek legal advice prior to making a decision or obligating the government prematurely. Even taking time differences into account, legal advice can often be obtained in minutes, and is never more than a few hours away. Prior to departing on a mission, CCOs reach out to the servicing attorney and identify potential legal issues they are anticipating, and the attorney is put on notice that reachback support under a tight turnaround time could likely be sought during this period.
Mission preparedness doesn’t begin with the identification of a contingency or overseas training exercise. The 413th CSB takes a proactive approach, providing as much training and education as possible. Contract attorneys conduct monthly training on topics covering the gamut of contracting, from end-of-year fiscal issues and ethical concerns in foreign countries to the dangers of unauthorized commitments by government purchase card holders. The legal office takes concerns raised and lessons learned from previous missions and CCO after-action reports to identify relevant topics.
In another effort to shed light on potential legal issues that can arise in contingency operations, the 413th legal office actively participates in the annual Disaster Training Exercise (DTX).
DTX is a joint exercise with CCOs from the 413th CSB, the 411th CSB in Yongsan, Korea, and the 766th Specialized Contracting Squadron at Joint Base Pearl Harbor-Hickam in Hawaii. In the truncated timeline of one week, they are required to provide cradle-to-grave contracting support involving both simple cash purchases using Standard Form 44 acquisitions for bottled water and office supplies, and the more complex acquisitions involving blanket purchase agreements, contracting officer representatives and contract modifications.
During DTX, an attorney sleeps, eats and lives with the CTs while providing legal support and advice. This level of involvement builds camaraderie and team unity, and helps CCOs recognize legal issues that can arise during contingency operations.
In addition to providing legal, fiscal and ethical guidance, the contract attorney also injects legal issues into DTX. The legal injects are meant to be dynamic and thought-provoking, forcing the CCOs to think outside the box and recognize the potentially far-reaching legal implications of a simple occurrence. For example, these injects demonstrate how a simple request from the host nation’s military to borrow equipment can lead to an analysis of bona fide needs, the Purpose Statute, ACSAs, bribes and improper gifts, and culminate in a possible claim, unauthorized commitment or Antideficiency Act violation.
As U.S. forces continue to shift focus to the Pacific theater, the frequency of overseas operations will undoubtedly continue to rise, along with the complexity of the required contracts. As a result, the interdependent relationship between CCOs and contracting attorneys will become much more important. To foster development of this relationship, the 413th CSB has outlined several keys to success:
- Continue to assign individual attorneys to missions.
- Have attorneys conduct training for CCOs on a regular basis.
- Incorporate attorneys into an annual capstone training exercise, such as the DTX or the DOD Operational Contract Support Joint Exercise.
- Encourage continued training and development of emerging topics for attorneys.
- Encourage continued interaction between Army contract attorneys with their sister service counterparts.
As the U.S. role in overseas missions and exercises continues to grow, the requirements for a CCO will become increasingly complex. With this added responsibility, authority and discretion comes the inherent danger of abuse and complacency.
In an effort to steer clear of this, the 413th CSB is constantly searching for innovative ways to provide the legal training for its CCOs and increase attorneys’ presence and involvement in overseas missions. It is only through this level of involvement that contract attorneys can provide advice on interpreting the FAR and guide CCOs in navigating the ethical, fiscal and legal landmines that litter the acquisition battlefield.
CAPT. JAMES S. KIM is the deputy command judge advocate with the 413th Contracting Support Brigade at Fort Shafter, Hawaii. He holds a J.D. from Loyola Law School, Los Angeles, and a B.A. in history and economics from Boston College.
This article was originally published in the July – September 2016 issue of Army AL&T magazine.
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