Chapter 18

Contingency & Deployment Contracting

1. INTRODUCTION

General.  The consistent combat and humanitarian operations of the 21st century have demonstrated the importance of contingency contracting as a force multiplier.  Many of the goods and services required to successfully engage in extended deployment operations cannot be provided by current uniformed forces alone.  To meet those needs, the Department of Defense relies increasingly on contracted support.  The apparatus for competing, awarding, and supervising contractors in deployed or contingency environments is called “contingency contracting.” The Joint Chiefs of Staff, in Joint Publication (JP) 4-10, define Contingency Contracting as “The process of obtaining goods, services, and construction via contracting means in support of contingency operations.” JP 4-10, Part II-Terms and Definitions.

Legal Support to Operations.  Doctrine covering legal support to operations provides that the Staff Judge Advocate’s “contract law responsibilities include furnishing legal advice and assistance to procurement officials during all phases of the contracting process and overseeing an effective procurement fraud abatement program.”  FM 1-04, para. 4-19.  Specifically, judge advocates are to provide “legal advice to the command concerning battlefield acquisition, contingency contracting, bid protest and contract dispute litigation, use of Logistics Civil Augmentation Program (LOGCAP), acquisition and cross-servicing agreements (known as ACSA), and outside the continental United States real estate and construction.”  Id. 

1. 1. 1. Scope of Duties.  Depending on their assigned duties, Legal Counsel should participate fully in the acquisition process at their level, make themselves continuously available to their clients, involve themselves early in the contracting process, communicate closely with procurement officials and contract lawyers in the technical supervision chain, and provide legal and business advice as part of the contract management team. Id. para. 4-20; see also AFARS 5101.602-2-90 (describing contracting officers’ use of legal counsel).
      2. Pre-Deployment.  Judge Advocates should “marshal resources and assist the early entry command post’s final coordination, to include the identification of funding sources and other legal requirements.  They also establish liaison with the contracting support brigade or joint theater support contracting command, and the Department of State country team in the theater of operations.”  FM 1-04, para. 4-22.  This begins with the Judge Advocate ensuring they receive the contract and fiscal law training necessary to succeed in their contingency mission.  This also includes the judge advocate holding contract/fiscal law training for key personnel such as claims officers, resource managers, and logistics personnel; reviewing acquisition and logistics plans as part of the units’ operation plan (OPLAN), and being available to give advice on the best practices to obtain goods and services while deployed.
      3. Operational Support.  To provide contract law support in operations, judge advocates with contract law experience or training should be assigned to division and corps-level main and tactical command posts, Theater Sustainment Command (TSC) headquarters, theater army headquarters, and each joint and multinational headquarters.  Depending on mission requirements, command structure, and the dollar value and/or complexity of contracting actions, contract law support may be required at various command levels including brigade or battalion.  Id. paras. 4-20 to 4-21. 
      4. Contract-Specific Roles.  Judge Advocates may be assigned as Command Judge Advocates or Deputy Command Judge Advocates for a Contract Support Brigade (CSB).  These judge advocates serve as the primary legal advisors to CSB commanders, staff, and contracting officials on the full spectrum of legal and policy issues affecting the CSBs’ peacetime and operational missions.  ATP 4-71, para. 1-16.  Judge Advocates at sustainment brigades, theater sustainment brigades, and expeditionary sustainment brigades perform similar functions.  FM 1-04, para. 4-21.  Judge Advocates assigned to these and other contracting organizations should have contract and fiscal law training.  Id.
      5. Demonstrated Importance.  After action reports (AAR) from Iraq and Afghanistan consistently indicate that judge advocates, including Brigade Judge Advocates, throughout both theaters—regardless of the position to which they are assigned—practiced fiscal law regularly.  These AARs indicated that while most judge advocates encountered contract law issues less frequently, they needed an understanding of basic government contract law principles to intelligibly conduct fiscal law analyses.  For judge advocates assigned to contracting or logistics-heavy units, knowledge of contract law was a prerequisite to their daily duties.     

Applicable Law during a Deployment.  Contracting during a deployment involves two main bodies of law: international law, and U.S. contract and fiscal law.  FM 1-04, paras. 4-17 thru 4-19.  Attorneys must understand the authorities and limitations imposed by these two bodies of law.

1. 1. 6.  International Law.
         1. The Law of Armed Conflict – Combat.  The Law of Armed Conflict applies during combat operations and imposes limitations, for example, on the use of prisoners of war (POW) for labor.  Many contractors are authorized to accompany the force, a technical distinction that allows them to receive POW status should they be captured.  See GCIV, ART 4(A)(4).
         2. The Law of Armed Conflict – Occupation.  The Law of Armed Conflict also applies during occupation, and may also be followed as a guide when no other body of law clearly applies.
         3. International Agreements.  A variety of international agreements, such as treaties and status of forces agreements (SOFA), may apply.  These agreements can have substantial impact on contingency contracting by, for example, limiting the ability of foreign corporations to operate inside the local nation, placing limits and tariffs on imports, and governing the criminal and taxation jurisdiction over contractors and their personnel. 

Example:  The Security and Defense Cooperation Agreement (SDCA), also known as the Bilateral Security Agreement (BSA), executed between the United States and the Government of the Islamic Republic of Afghanistan (effective 1 January 2015) covered many of the duties and rights of the United States and its contractors operating in Afghanistan. The agreement stated that the Government of the United States, its military and civilian personnel, contractors and contractor personnel “shall not be liable to pay any tax or similar or related charges assessed by the Government of Afghanistan…”  (emphasis added).  This type of provision has a profound impact on contract pricing and contractor performance.  Legal Counsel must know these agreements to properly advise their clients when facing contingency contracting.

1. 1. 7. U.S. Contract and Fiscal Law.  There is no “deployment exception” to Contract or Fiscal Law.  Judge Advocates in contingency operations must apply the same standards applicable during garrison operations.  However, local regulations, policies, and authorities that are not otherwise available may exist in contingency operations and can provide greater flexibility for commanders in those areas. 
         1. Federal Acquisition Regulation (FAR) and agency supplements.  The FAR fully applies to contingency contracting.  However, the following Parts are most relevant during contingency operations:
            1. FAR Part 6 details the competition requirements for all acquisitions.  Subpart 6.3 explains when acquisition personnel may award contracts using less than full-and-open competition if certain conditions exist. In any case where less than full-and-open competition is sought, specific findings must be made.
            2. FAR Part 13 details the use of simplified acquisition procedures (SAP).  The majority of all contracting actions in contingency operations, especially those occurring at division levels or lower echelons, will use SAP, which are based primarily on acquisitions falling below a certain cost threshold.  More expensive acquisitions may not qualify. 
            3. FAR Part 18 provides a listing of the various FAR provisions allowing expedient and relaxed procedures that may be useful in a contingency situation.
            4. FAR Part 25 and DFARS Part 225 cover foreign acquisitions, including the “Buy American” Act (41 U.S.C. §§ 8301-8305) and other requirements.
            5. FAR Part 50 outlines the extraordinary contractual actions available during emergency situations.  These are rarely used due to their low dollar threshold (actions greater than $75,000 require secretarial approval) and high approval levels, involving Congressional notification.
         2. Fiscal Law.  Title 31, U.S. Code; Department of Defense (DOD) Financial Management Regulation FMR (DOD FMR); DFAS-IN Manual 37-100-XX (XX=current fiscal year (FY)).  For a more in-depth discussion of fiscal law principles, see generally Contract & Fiscal Law Dep’t, The Judge Advocate General’s Legal Center & School, U.S. Army, Fiscal Law Deskbook (updated frequently and available online at https://tjaglcs.army.mil/publications).
         3. Executive Orders and Declarations.
         4. Contingency Funding and Contract Authorizations.  Generally, ordinary fiscal and acquisition rules apply during contingency operations.  There is no blanket “wartime” or “contingency” exception to these rules.  The fact that an operation is ongoing, however, may:
            1. Make the use of existing authorities easier to justify.  For example, the operational situation in a contingency operation will likely give rise to circumstances making it easier to develop a justification and approval to support the use of the unusual and compelling urgency exception to full and open competition located at FAR 6.302-2.
            2. Appropriation and authorization acts may contain temporary, extraordinary fiscal and contract authorities specific to a particular operation.  Operations in Afghanistan contained numerous examples of these extraordinary authorities, including the expenditure of Commander Emergency Response Funds (CERP) and the Afghanistan First program.  Operations to support Ukraine have multiple funding authorities, including Fiscal Year (FY) 2016 National Defense Authorization Act (NDAA) § 1250 (Ukraine Security Assistance Initiative) and §1251 (Training for Eastern European National Security Forces in the Course of Multilateral Exercises).
         5. Permanent Extraordinary Contract Authority.  During a national emergency declared by Congress or the President, and for six months after the termination thereof, the President and delegees may initiate or amend contracts notwithstanding any other provision of law whenever it is deemed necessary to facilitate the national defense.  Pub. L. No. 85-804, codified at 50 U.S.C. §§ 1431-1435; Executive Order 10789 (14 Nov. 1958); FAR Part 50; DFARS Part 250.  These powers are broad, but the statute and implementing regulations contain a number of limitations.  For example, these powers do not allow waiving the requirement for full and open competition, and the authority to obligate funds in excess of $75,000 may not be delegated lower than the Secretariat level.  This authority is rarely used. Additionally, despite this grant of authority, Congress still must provide the money to pay for obligations.
2. DEPLOYMENT CONTRACTING Authority,  Planning, Personnel, and Organization

Contract vs. Command Authority.  Commanders have broad authority to direct operations as required.  However, they do not have the authority to obligate the U.S. Government to expend funds.

1. 1. 1. Command Authority.  Prescribed by 10 U.S.C. § 164.  Includes the authority to perform functions involving organizing and employing commands and forces, assigning tasks and designating objectives, and giving authoritative direction over all aspects of an operation.  In a contingency operation, command authority runs from the President through the Secretary of Defense to the Geographic Combatant Commanders (GCC) and ultimately joint force commanders.  Command authority does NOT include the ability to make binding contracts for the U.S. Government.  ATP 4-71, para. 1-31; see also JP 4-10, p. I-13. 
      2. Contract Authority.  Premised on the U.S. Constitution, federal statutes, and regulatory authority (FAR, DFARS, Service supplements).  Contracting authority in the operational area flows from the President, then to the Secretary of Defense, through the Service/Agency Head, to the Head of Contracting Activity (HCA), then to the Senior Contracting Official (SCO) or Principal Assistant Responsible for Contracting (PARC), and finally to the contracting officer.  Only the contracting officer, by virtue of his or her contracting warrant, has the authority to obligate the U.S. Government on contractual matters.  Any binding contract attempt made by anyone other than a contracting officer may result in an unauthorized commitment.  FAR 1.6; JP 4-10, p. I-13; ATP 4-71, para. 1-31.

Planning.  The type of organization to which a judge advocate is assigned will dictate the degree to which they must become involved in planning for contract support.  At a minimum, however, judge advocates should be familiar with how Joint and Army doctrine incorporate planning for contract and contractor personnel support through the Contract Support Integration Plan and Contractor Management Plan. 

1. 1. 3. Operational Contract Support (OCS).
         1. In all operations where there will be a significant use of contracted support, the supported GCC and their subordinate commanders and staffs must ensure that this support is properly addressed and planned for. JP 4-10, p. III-9 to III-10. All OCS matters should be incorporated into Annex W (Operational Contract Support) to the GCC’s OPLAN/OPORD. JP 4-10, p. II-8. At the component command level, and typically at the sub-joint force or functional component command, there should be an Operational Contract Support Integration Cell (OCSIC) responsible for planning, advising on, coordinating, and maintaining information on OCS between and within commands. JP 4-10, p. III-1 to III-4.  
         2. OCS planning and integration are primarily an operational, not contracting, function. JP 4-10, p. III-3. However, all functions within a joint staff have important OCS-related duties. For the JA, this includes providing operational, contract, and fiscal law advice, and advising as to the feasibility of asserting US federal criminal jurisdiction over contractors authorized to accompany the force (CAAF). JP 4-10, Figure III-3.
      4. Contractor Management Plan (CMP).
         1. The CMP is a major subset of OCS planning.  While the body of Annex W  is focused on how to acquire and integrate contracted support, the CMP is focused on contractor personnel and equipment tasks, including government obligations to contractor personnel under the contract terms.  JP 4-10, p. V-6.
         2. Contractor management is accomplished through a myriad of different requiring activities, contracting officer representatives, supported units, contracting organizations, and contractor company management personnel.  JP 4-10, p. V-5 to V-6. Therefore, the GCC and subordinate joint forces commander must establish clear, enforceable, and well understood theater entrance, accountability, force protection, and general contractor management and procedures early in the planning stages of any military contingency.  Id.  To accomplish this task, the GCC should publish a CMP.  JP 4-10, para. V-6. 
         3. The CMP should specify operational specific contractor personnel and equipment requirements in order for the Joint Forces Commander, Service components, theater support contracting command, special operations forces, external support contracts, and the Defense Logistics Agency to incorporate these into applicable contracts.  JP 4-10, para. V-6 to V-8.  These requirements may include but are not limited to restrictions imposed by applicable international and host-nation support agreements; contractor related deployment, theater reception, accountability, and strength reporting; operations security plans and restrictions; force protection; personnel recovery; contractor personnel services support; medical support, and redeployment requirements.  Id.
         4. The Joint Forces Command and Service components should prepare supporting CMPs that support the GCC’s CMP but provide more specific details.  ATP 4-71, paras. 3-17 to 3-18.  
         5. The contracting officer, working with the requiring activity and the supporting command’s SJA, determines contractor employee CAAF/non-CAAF status in all operations outside the US as early as possible in the contracting process. The key to success is for the contracting officer to be familiar with and follow DOD contractor management policy, including applicable DFARS guidance and specific theater requirements. This determination should be made in close coordination with the command’s SJA. JP 4-10, p.V-7.
         6. For more detailed information on contingency contractor personnel, see Contract & Fiscal Law Dep’t, The Judge Advocate General’s Legal Center & School, U.S. Army, Contract Attorneys Deskbook ch. 31, Contingency Contractor Personnel (updated frequently and available online at https://tjaglcs.army.mil/publications).
      5. In a developed theater, JAs should familiarize themselves with theater business clearance procedures, theater specific contract clauses and policies, contract and acquisition review boards, as well as resource management policies and standard operating procedures, such as the Money as a Weapons System—Afghanistan (MAAWS-A).  AARs from Afghanistan indicate that familiarity with this resource was foundational to anyone who provided fiscal or contract law advice in theater.

Deployment Contracting Personnel.  Contracting authority runs from the Secretary of Defense to the Heads of Contracting Activities (HCA).  The HCA appoints a Senior Contracting Official (SCO) or Principal Assistant Responsible for Contracting (PARC).  The HCA and SCO/PARC warrant contracting officers at various levels and with varying levels of authority.  AFARS 5101.603.  The chief of a contracting office, also a contracting officer, may appoint field ordering officers (FOOs) to conduct relatively low dollar value purchases.  AFARS 5101.602-2-92.  FOOs are authorized to obligate the government to pay for goods or services in accordance with their appointment letters, but FOOs do not normally handle money.  Soldiers or DOD civilians known as paying agents (formerly known as Class A Agents) handle money and pay merchants for purchases made by the FOOs.  COCOM and theater-specific guidance (e.g., the MAAWS-A) typically limit the authority, thresholds, and procedures for FOOs and paying agents.

1. 1. 6. Head of Contracting Activity (HCA).  A Flag Officer or equivalent senior executive service (SES) civilian who has overall responsibility for managing a contracting activity.  FAR 2.101. 
         1. The HCA serves as the approving authority for contracting as stipulated in regulatory contracting guidance. 
         2. DOD Contracting Activities are listed in the DFARS, and include, among others, Headquarters, U.S. Army Materiel Command, U.S. Army Corps of Engineers, U.S. Transportation Command, U.S. Special Operations Command, and the Joint Theater Support Contracting Command.  The head of each contracting activity is an HCA.  DFARS 202.101; AFARS 5101.692. 
         3. See generally AFARS 5101.692 for a discussion on the responsibilities of HCAs.
      7. Senior Contract Official (SCO).  The SCO is a lead service or joint command designated contracting official who has direct managerial responsibility over theater support contracting.
         1. There may be multiple SCOs in the same operational area based on mission or regional focus.  For example, at one time in Operation Iraqi Freedom (OIF), there were two SCOs: one for support to forces and one for reconstruction support.  JP 4-10, para. I-2c(2) (17 Oct. 2008).
         2. In the Army, SCOs were previously known as a Principal Assistants Responsible for Contracting (PARC).  The 10 September 2019 AFARS update changed the term in AFARS 5101.693 PARC to SCO aligning the Army with much of the rest of the Executive branch.  However, the term and title of PARC is still used throughout many contracting offices and by many Army regulations and doctrinal publications. 
         3. HCAs appoint SCOs. AFARS 5101.692.
         4. The SCO serves as the senior Army contracting advisor responsible for planning and managing all Army contracting functions which the FAR, DFARS, PGI, AFARS, and other directives do not require the HCA to perform personally (except when the HCA elects to exercise selected authorities).  The SCO, by virtue of the organizational position occupied, may execute command functions for the contracting activity, however, these functions are separate and distinct from procurement authority.  AFARS 5101.693(3). 

Example—The Commander of the Army Contracting Command (AMC) is an HCA.  ATP, para. 1-1. The HCA normally appoints each Contracting Support Brigade Commander as a SCO.  ATP 4-71, p. 1-2 to 1-3.

1. 1. 8. Contracting Officer (KO).  The government official (military officer, enlisted, or civilian) with the legal authority to enter into, administer, modify, and/or terminate contracts.  FAR 1.602.
         1. Appointed in writing through a warrant (Standard Form 1402) by the HCA or SCO/PARC.  JP 4-10, p. I-7.
         2. Only duly warranted contracting officers are authorized to obligate the U.S. Government, legally binding it to make payments against a contract.  Id.
         3. Three main types of contracting officers exist:  procuring contracting officers (PCOs), administrative contracting officers (ACOs), and terminating contracting officers (TCOs).  Id.  PCOs enter into contracts.  ACOs administer contracts.  TCOs settle terminated contracts.  A single contracting officer may be responsible for duties in any or all of these areas.  FAR 2.101 (definition of “contracting officer”). 
      9. Contracting Officer’s Representative (COR).  CORs operate as the KO’s “eyes and ears” regarding contract performance and provide the key link between the command and the KO regarding the command’s needs.  CORs are organic members of the unit and are assigned to be a COR as an additional duty.  CORs are necessary because KOs are normally not located at the site of contract performance.  In many cases, contracts will already be in place before the unit deploys, and the KO for the contract is in CONUS or at a geographically separated Regional Contracting Center.  Commanders should consider whether to request that the KO appoint at least one COR for each contract affecting the unit.  The COR can only be appointed by the KO (usually after nomination by the unit command).  FAR 1.602-2(d).  CORs do NOT exercise any contract authority and are used for communication regarding contract performance.  See FAR 1.602-2(d).  Any issues with the contractor must still be resolved by the KO.  See DFARS 201.602-2; JP 4-10, p. I-6.
         1. A properly trained COR shall be designated in writing prior to contract award.  FAR 1.602-2(d), DoDI 5000.72, DoD Standard for Contracting Officer’s Representative (COR) Certification, November 6, 2020.  CORs must be a U.S. Government employee, unless authorized by agency-specific regulations.  DFARS 201.602-2 authorizes employees of foreign governments or a NATO/coalition partner to act as CORs as well.
         2. Local policies and mission specific orders may dictate additional responsibilities regarding CORs due to their importance for mission success.  Many of these require the identification and training of CORs well in advance of deployment or mission execution. 

For example, see HQDA EXORD 048-10: Pre-Deployment Training for Contracting Officer’s Representative and Commander’s Emergency Response Program (CERP) Personnel, dated 5 Dec. 2009.  This required brigades, brigade equivalents, and smaller units deploying in support of OEF or OIF to determine the number of CORs needed to meet theater contracting requirements no later than (NLT) 180 days before the latest arrival date (LAD), and then complete preliminary training for the identified CORs NLT 90 days before LAD.  They would then require additional training from the KO upon appointment as a COR. 

1. 1. 9. 3. For more detailed information on COR responsibilities, see Dep’t of Def., Contracting Officer’s Representatives Guidebook (May 2021), chapter 11; Defense Contingency COR Handbook, v2 (Sep. 2012); see also DFARS PGI 201.602-2. 
      10. Field Ordering Officer (FOO). 
          1. Service member or DOD civilian appointed in writing and trained by a contracting officer.  AFARS 5101.602-2-92; 5101.603-1; 5101.603-3-90. 
          2. FOOs are usually not part of the contracting element, but are a part of the forward units. 
          3. FOOs may be authorized to make purchases over the counter with SF44s up to the micro-purchase threshold, place orders against certain indefinite delivery contracts established by KOs, make calls under Blanket Purchase Agreements (BPAs) established by KOs, and make purchases using imprest funds.  AFARS 5101.602-2-92.  FOOs may also be government purchase card holders.  AFARS 5113.2.  However, FOOs are still subject to limitations in their appointment letters, procurement statutes and regulations, and fiscal law.  Contracting authority may be limited by dollar amount, subject matter, purpose, time, etc.  Typical limitations are restrictions on the types of items that may be purchased and on per purchase dollar amounts.  A sample appointment letter is found at AFARS 5153.303-2.
          4. AFARS 5101.602-2-92 contains guidance on the appointment, training, surveillance, and termination of FOOs.  Additionally, contracting activities publish additional FOO guidance applicable to FOOs appointed under the authority of the contracting activity. 
      11. Paying Agents.  Finance specialists, and DOD uniformed personnel and civilians appointed and trained by Finance, hold money.  When FOOs or KOs make purchases using SF44s, the merchant can present the form to the paying agent for payment.  Alternatively, and most likely a necessity in an immature theater, the paying agent will accompany the FOO or KO.  Once the FOO/KO completes the transactions, the paying agent will pay the merchant.  Pre-deployment coordination with Finance to determine who the paying agents are and where they will be located will aid the deployed contracting process.  Paying agents may not be FOOs.  For detailed guidance on paying agents, see generally FM 1-06. para. 3-40 to 3-42; see also DOD FMR, vol. 5, ch. 2, para. 7.4 (discussing the appointment and responsibilities of paying agents).

Sources of Contracted Support in a Contingency Operation.

1. 1. 12. General.  Three different sources of contract support generally are used in support of contingency operations:  Theater Support Contracts, Systems Support Contracts, and External Support Contracts. 
      13. Theater Support Contracts.  Contracts awarded by contracting officers in the operational area serving under the direct contracting authority of the Service component, special operations forces command, or designated joint HCA for the designated contingency operation.  JP 4-10, p. I-9 and app. B.  These contracts are commonly referred to as contingency contracts.  Id.  For example, theater support contracts in Afghanistan include contracts awarded by the CENTCOM Joint Theater Support Contracting Command or any of its Regional Contracting Centers or Offices.
      14. Systems Support Contracts.  Contracts awarded by Service acquisition program management offices that provide technical support, maintenance and, in some cases, repair parts for selected military weapon and support systems.  Systems support contracts are routinely put in place to provide support to newly fielded weapons systems, including aircraft, land combat vehicles, and automated command and control systems.  These contracts are often awarded long before—and unrelated to—a specific operation.  JP 4-10, app. A, p. A-1.  Of note, only the contracting activity that issued the contract has the authority to modify or terminate the contract. 
      15. External Support Contracts.  Contracts awarded from contracting organizations whose contracting authority does not derive directly from the theater support contracting HCA or from system support contracting authorities.  External support contracts provide a variety of logistic and other noncombat related services and supply support.  JP 4-10, p. I-9. 
          1. Types of Support. 
             1. Logistic support includes base operating support, transportation, port and terminal services, warehousing and other supply support functions, facilities construction and management, prime power, and material maintenance.  Id. 
             2. Non-logistic support may include communication services, interpreters, commercial computers and information management, and, subject to congressional as well as DOD policy limitations, interrogation and physical security service support.  Id.
          2. External support contracting authority does not come as a direct result of the contingency operation.  Generally, these contracts are issued during peacetime for use during contingencies by the Service Components.  Contracting authority, and therefore the ability to modify contracts, remains with the Service Component.  For example, requirements for the Army’s Logistics Civil Augmentation Program (LOGCAP) contract are managed by the Army Sustainment Command and the contracts are awarded and managed by the Army Contracting Command, both of which fall under the Army Materiel Command (AMC).  See generally, JP 4-10, p. I-9.
          3. Major External Support Contracts include each Service’s civil augmentation program (CAP) contracts (LOGCAP for the Army, the Air Force Contract Augmentation Program (AFCAP), and the U.S. Navy Global Contingency Construction Contract (GCCC) and Global Contingency Service Contract (GCSC)); fuel contracts awarded by DLA Energy; construction contracts awarded by the U.S. Army Corps of Engineers and Air Force Center for Engineering and Environmental Excellence; and translator contracts awarded by the Army Intelligence and Security Command.  JP 4-10, p. I-9 to I-10.
          4. Civil Augmentation Program (CAP) Contracts.  Provide the supported GCC and subordinate Joint Forces Commander an alternative source for meeting logistic services and general engineering shortfalls when military, host-nation support, multinational, and theater support contract sources are not available or adequate to meet the force’s needs.  JP 4-10, p. I-9; ATP 4-10, 16 December 2021 Because these contracts are often more expensive than theater support contracts, a transition to theater support contracts should be considered.
             1. Service CAP similarities.  ATP 4-10, 16 December 2021, p. A-7, D-5.
                1. Augment organic military capabilities.
                2. Long-term (four to nine years depending on the program) competitively awarded contracts.
                3. Use, or can opt to use, cost plus award fee ID/IQ task orders.
                4. Potentially compete for the same general commercial support base.
             2. Service CAP differences.  Id.
                1. Authorized expenditure limit and planning and management capabilities.
                2. Support focus:

LOGCAP focuses on general logistic support and minor construction support.  The program utilizes separate support (planning and program support) and performance (task order execution) contracts.

AFCAP focuses on both construction and general logistic support and can be used for supply support.

The Navy GCCC focuses exclusively on construction.

The Navy GSCS focuses on facilities support.

Theater Contracting Support Organizational Options.

2. 1. 16. General.  There is no single preferred contracting organizational option for theater support contracting organizations; the specific organization option is determined by the Geographic Combatant Commander (GCC) in coordination with the subordinate Joint Force Command and Service Components.  JP 4-10, app. B, p. B-1 to B-2.  In general, however, there are three main organizational options:  service component support to own forces, choosing a lead Service, and forming a joint theater support contracting command.  Id.  Within the Army (outside of the theater contracting organization options discussed herein), corps, divisions, and brigades do not have any organic contracting officers or authority (beyond FOOs, Government Purchase Cardholders, and so forth).  See generally, ATP 4-71, ch. 1.
      17. Lead Service for Contracting Coordination (LSCC). 
          1. During smaller-scale operations with an expected short duration, the GCC may allow the Service component commanders to retain control of their own theater support contracting authority and organizations.  This organizational option is also applicable to operations where the bulk of individual Service component units will be operating in distinctly different areas of the joint operations area thus limiting potential competition for the same vendor.  This is known as lead service for contracting coordination (LSCC), as each service in-theater retains command and control (C2) and contracting authority over its deployed theater support contracting organizations, but a designated lead service coordinates common contracting actions within the operational area. JP 4-10, p. IV-3.
          2. Army.  The Army established the Expeditionary Contracting Command to provide theater support contracting in support of deployed Army forces worldwide and garrison contracting support for Outside the Continental United States Army installations.  The commanders of each of six regionally focused contracting support brigades (CSB) are PARCs or SCOs.  FM 4-71, p. 1-2. In turn, each brigade has a number of contingency contracting battalions, contingency contracting teams, and senior contingency contracting teams.  Id. para. 1-24 to 1-29.  CSB units are deployed as necessary to meet mission contracting requirements.  Specifically, the CSB may be organized to provide Service component support to Army forces.
      18. Lead Service for Contracting (LSC).
          1. GCCs may designate a specific Service component responsible to provide consolidated theater contracting support.  JP 4-10, p. IV-2 to IV-3. In this construct, the designated service component contracting activity is responsible for providing theater support contracting, along with associated funding arrangements, for specified common commodities and common services for a particular geographic region. Id., p. IV-4.
          2. Most appropriate for major, long-term operations where the supported GCC and supported joint force commander desire to ensure that there is a consolidated contracting effort within the operational area, but without the need to stand-up an entirely new joint contracting command.  Id.
          3. The lead service often has command and control of designated other Service component theater contracting organizations and also has its staff augmented by other Services’ contingency contracting personnel.  Id.
          4. Within the Army, the CSB may be designated as the lead Service contracting organization (with or without command and control of other Service contracting elements).  ATP 4-71, para. 1-10.
      19. Joint Theater Support Contracting Command (JTSCC). 
          1. Established by GCC.  The joint theater support contracting command is a joint, functional command that has a specified level of command and control authority over designated Service component theater support contracting organizations and personnel within a designated support area. JP 4-10, p. IV-4 to IV-5.  For Afghanistan, the CENTCOM Contracting Command (C3) was established and organized as a Joint Theater Support Contracting Command.
          2. Since GCCs do not have their own contracting authority, the joint theater support contracting command’s HCA authority flows from one of the Service components to the operational area.  In this option, the joint theater support contracting command headquarters should be established by a Joint Manning Document (JMD).  Id.    
          3. Within the Army, the CSB may serve as the building block for the formation of a joint theater support contracting command.  ATP 4-71, para. 7-11.
          4. There is no formally approved, established model for lead Service theater support or the joint theater support contracting command organization options.  JP 4-10, app. B, however, provides a general model or organization framework for each type of organization, to include a discussion of legal support to these organizations.  Significantly, each of these organizational options will likely include regionally focused subordinate Regional Contracting Centers (RCCs) and Regional Contracting Offices (RCOs) with warranted contracting officers tasked to execute contracts in support of deployed joint forces.  Id., p. B-10.
3. Requirements Generation, Approval, and contracting process

General.  Once a requirement for goods or services is identified and approved by a requiring activity, resource management, finance operations, and contracting personnel must work in concert to actually acquire and pay for the good or service.  FM 1-06, at 1-6.

1. 1. 1. Requiring Activity.  Units requesting the goods and services are requiring activities, regardless of their organizational level.  For example, whether a company or a corps requires fuel or base support services, each is a requiring activity. The unit is responsible for developing the requirement, to include clearly defining the requirement and conducting basic market research.  JP 4-10, p. III-14.  Unit commanders and staff identify, develop, validate, prioritize, and approve requirements.
         1. Requiring activities are responsible for developing “acquisition ready” requirements.  In coordination with the supporting contracting activity (e.g., RCC or RCO), the requiring activity must be able to describe what is needed to fulfill the minimum acceptable standard for the government.  This information allows the contracting activity to create a solicitation against which commercial vendors can bid a proposal and successfully deliver in accordance with the terms of the contract to satisfy a government requirement.  See JP 4-10, p. III-15.
         2. Specifically, the requiring activity, in coordination with the supporting contracting office, must conduct basic market research, develop an independent government estimate, develop a performance work statement or statement of work, and obtain certified funding from the requiring activity’s resource manager.  JP 4-10, p. III-15.  Judge Advocates conducting fiscal and contract reviews must carefully review each of these documents.  For example, requirements which superficially appear to be services and therefore properly funded with operations and maintenance appropriations may in fact include requirements for construction or the procurement of investment items that may require the use of a different appropriation.
      2. Resource Management (RM). 
         1. Serves as the commander’s representative to lead the requirement validation, prioritization, and approval effort. 
         2. Certifies the availability of funds by executing a purchase request and commitment (PR&C) and ensures the use of the funds is legal and proper.
      3. Contracting Officers. 
         1. The only government officials (military officer, enlisted, or civilian) with the legal authority to enter into, administer, and/or terminate contracts.  FAR 1.602.
         2. Upon receipt of certified funding and properly developed requirement, contracts on behalf of the U.S. Government to obtain the good or service.  ATP 4-71, para. 1-31.
         3. Responsible for appointing and training field ordering officers (FOO).
      4. Finance Operations.        
         1. As the government’s banker, Finance is the only triad element with funds disbursement authority.  Once a contract has been awarded, finance operations provide vendor payment through cash, check, government purchase card, or electronic funds transfer.  FM 1-06, p. 1-26. 
         2. Funds and clears paying agents.

Requirements Approval Process.

1. 1. 5. Ensures the appropriate functional staffs coordinate on, prioritize, approve, and certify funding for the “acquisition ready requirements” package before it is forwarded to the appropriate contracting activity.  ATP 4-71, para. 4-14.  These staff reviews can include, but are not limited to:
         1. Legal
         2. Supply/logistics/property book.
         3. Engineer
         4. Medical
         5. Signal (information technology and communication)
         6. Resource Management
         7. Other as needed/required by the circumstances.
      6. In major operations, common user logistics (CUL) (also known as base life support or base operations support) are coordinated by the GCC and subordinate Joint Forces Commander among the functional staffs through the use of three important contracting related review boards as discussed below.  JP 4-10, ch. 4; see also ATP 4-71, para. 7-3.
      7. Combatant Commander Logistic Procurement Support Board (CLPSB).  Ensures that contracting and other related logistics efforts are properly coordinated across the entire AOR.  JP 4-10, p. III-6.  Focuses on general policies and AOR-wide issues related to contracting support at the GCC level, to include:
         1. Identifying contracting and related issues that may require Joint Staff Office of Primary Responsibility, J-4, and/or Office of the Secretary of Defense action;
         2. Establishing AOR-wide contracting and contractor management policies and procedures; and
         3. Determining theater support contracting organization structure.                              
      8. Joint Requirements Review Board (JRRB).  JP 4-10, p. III-6.
         1. Utilized to coordinate and control the requirements generation and prioritization of joint common user logistics (CUL) supplies and services that are needed in support of the operational mission.
         2. Normally chaired by the Joint Forces Deputy Commander or designated staff officer, with participation by the functional staff (to include JAs) as well as theater, external, and system support contracting members.
         3. Main role is to make specific approval and prioritization recommendations for all GCC directed, subordinated Joint Forces Commander controlled, high-value and/or high visibility CUL requirements and to include recommendations on the proper source of support for these requirements.
         4. The role of theater support and external support contracting members is to inform the other JRRB members which contracting mechanisms are readily available for a particular acquisition. The JRRB is operations-focused rather than contracting-focused and designed to vet requested services and support before going to a contracted support solution.  
         5. For an example, see Money as a Weapons System—Afghanistan (MAAWS-A).  This publication contained detailed guidance on the requirements approval process.  Judge Advocates deploying at any organizational level must familiarize themselves with the local policies governing requirements validation and contracting.
         6. Once a requirement is validated and approved by the JRRB, the resource manager certifies funding and the packet is provided to a contracting activity.
      9. Joint Contracting Support Board (JCSB).  JP 4-10, p. III-6.
         1. Focuses on how contracting will procure support in the Joint Operations Area.   
         2. Reviews contract support requirements forwarded by the JRRB and makes recommendations on which specific contracting organizations/venues (e.g., theater v. external) are best suited to fulfill the requirement.
         3. Establishes theater support contracting procedures.
         4. Chaired by SCO/PARC or subordinate J-4 acquisition officer.

Theater Business Clearance (TBC)/Contract Administration Delegation (CAD).

3. 1. 10. During operations, the need may arise to ensure that all contracts performed in the joint operating area are visible, contain certain minimum clauses and requirements, and are being effectively administered. 
      11. To enable this uniformity of effort in Iraq and Afghanistan, the Deputy Under Secretary of Defense, Acquisition, Technology, and Logistics and the Director of Defense Procurement and Acquisition Policy issued a series of memoranda directing JCC-I/A (now CENTCOM Contracting Command (C3)) to develop TBC procedures, to include procedures on contract administration delegation.  Headquarters, Joint Contracting Command – Iraq / Afghanistan, subj.:  Theater Business Clearance (TBC) Authority, Procedures, and Requirements for Iraq and Afghanistan.
      12. CENTCOM Contracting Command uses the TBC review process to ensure that contracting officers outside theater (e.g., external and system support contracting officers) insert mandatory language and clauses in contracts.  Id.  As an example, such clauses include:   
          1. C3 952.225-0001, Arming Requirements and Procedures for Personal Security Services Contractors and Requests for Personal Protection.
          2. C3 952.225-0005, Monthly Contractor Census Reporting
          3. C3 952.225-0009, Medical Screening and Vaccination Requirements for Third Country Nationals and Locally Hired Employees Operating in the CENTCOM Area of Responsibility.
          4. DFARS 252.225-7040, Contractor Personnel Authorized to Accompany U.S. Forces Deployed Outside the U.S., and DFARS Class Deviation 2007-O0010, Contractor Personnel in the U.S. Central Command Area of Responsibility. 
      13. The TBC review process also addresses whether in-theater contract administration will be delegated to Defense Contract Management Agency or whether administration will be re-delegated to the procuring contracting officer. 
4. CONTRACTING DURING A DEPLOYMENT

General. This section discusses various methods used to acquire supplies and services.  It begins with a general discussion of seeking competition and discusses specific alternatives to acquiring supplies and services pursuant to a new contract to meet the needs of a deploying force.

Competition Requirements.  The Competition in Contracting Act (CICA), 10 U.S.C. § 3201, requires the government to seek competition for its requirements.  See also FAR Part 6 and FAR 2.101.  In general, the government must seek full and open competition by providing all responsible sources an opportunity to compete.  No automatic exception is available for contracting operations during deployments.

1. 1. 1. For contracts awarded and performed within CONUS, the statutory requirement of full and open competition for purchases over the simplified acquisition threshold creates a 45-day minimum procurement administrative lead time (PALT), which results from a requirement to publish notice of the proposed acquisition 15 days before issuance of the solicitation (by synopsis of the contract action in the Government-wide Point of Entry (GPE)) at sam.gov, followed by a requirement to provide a minimum of 30 days for offerors to submit bids or proposals.  See FAR 5.203. Three additional time periods extend the minimum 45-day PALT:  1) time needed for the unit to define the requirement and push it through the requirement generation and approval process; 2) time needed for the contracting office to prepare the solicitation, evaluate offers, and award the contract; and 3) time needed after contract award for delivery of supplies or performance of services. This timeline may also be extended by bid protests to the contracting agency, Government Accountability Office, or Court of Federal Claims raising a legal challenge to the contract solicitation or award. See FAR 33.1.
      2. There are seven statutory exceptions that permit contracting without full and open competition, which are set forth in 10 U.S.C. § 3204 and FAR Subpart 6.3:
         1. Only one responsible source and no other supplies or services will satisfy agency requirements.  FAR 6.302-1.  The contracting officer may award a contract without full and open competition if the required supplies or services can only be provided by one or a limited number of sources.  For example, it may be necessary to award to a particular source where that source has exclusive control of necessary raw materials or patent rights.  FAR 6.302-1 provides additional examples of circumstances where use of this exception may be appropriate.  This exception allows the KO to limit the competition to those sources that can meet the Government’s need.
         2. Unusual and compelling urgency.  FAR 6.302-2.  This exception applies where the need for the supplies or services is of such an unusual or compelling nature that delay in awarding the contract would result in serious injury to the government.  Use of this exception enables the KO to limit the procurement to the only firm(s) he or she reasonably believes can properly satisfy the requirement in the limited time available.^[1]  Because of the urgency, the contracting officer is permitted to award the contract even before the written “Justification and Approval” (see paragraph 3 below) is completed.  Similarly, the urgency requiring use of this exception can allow the contracting officer to dispense with the 15-day publication requirement.  FAR 5.202(a)(2).
         3. Industrial mobilization, engineering, developmental, or research capability; or expert services for litigation.  FAR 6.302-3.  This exception is used primarily when it is necessary to keep vital facilities or suppliers in business, to prevent insufficient availability of critical supplies or employee skills in the event of a national emergency.
         4. International agreement.  FAR 6.302-4.  This exception is used where supplies or services will be used in another country, and the terms of a SOFA or other international agreement or treaty with that country specify or limit the sources.   This exception also applies when a foreign country who will reimburse the acquisition costs (e.g., pursuant to a foreign military sales agreement) directs that the product be obtained from a particular source.
         5. Authorized or required by statute.  FAR 6.302-5.  Full and open competition is not required if a statute expressly authorizes or requires the agency to procure the supplies or services from a specified source, or if the need is for a brand name commercial item for authorized resale.
         6. National security.  FAR 6.302-6.  This exception applies if disclosure of the government’s needs would compromise national security.  Mere classification of specifications generally is not sufficient to restrict the competition, but it may require potential contractors to possess or qualify for appropriate security clearances.  FAR 6.302‑6.
         7. Public interest.  FAR 6.302-7.  Full and open competition is not required if the agency head determines that it is not in the public interest for the particular acquisition.  Though broadly written, this exception is rarely used because only the head of the agency can invoke it – it requires a written determination by the Secretary of Defense.  DFARS 206.302-7.
      3. Use of any of these exceptions to full and open competition requires a “Justification and Approval” (J&A).  FAR 6.303.  For the contents and format of a J&A, refer to AFARS 5106.303, 5153.303-4, and 5153.-303-5.  The approving authority is responsible for the J&A, but attorney involvement and assistance is critical to successful defense of the decision to avoid full and open competition.  Limiting competition in any way invites protests of the procurement which may interrupt the procurement process.  Approval levels for justifications, as listed in FAR 6.304:
         1. Actions under $750,000:  the contracting officer.
         2. Actions from $750,000 to $15 million:  the competition advocate designated pursuant to FAR 6.501.
         3. Actions from $15 million to $75 million (or $100 million for DOD, NASA, and the Coast Guard):  the HCA or designee.
         4. Actions above $75 million (or above $100 million for DOD, NASA, and the Coast Guard):  the agency acquisition executive.  For the Army, this is the Assistant Secretary of the Army for Acquisition, Logistics, and Technology (ASA(ALT)).
      4. Contract actions awarded and performed outside the United States, its possessions, and Puerto Rico, for which only local sources will be solicited, generally are exempt from compliance with the requirement to synopsize the acquisition in the GPE.  These actions therefore may be accomplished with less than the normal minimum 45-day PALT, but they are not exempt from the requirement for competition.  See FAR 5.202(a)(12); see also FAR 14.202-1(a) (thirty-day bid preparation period only required if procurement is synopsized).  Thus, during a deployment, contracts may be awarded with full and open competition within an overseas theater faster than within CONUS, thus avoiding the need for a J&A for other than full and open competition for many procurements executed in rapid fashion.  Obtain full and open competition under these circumstances by posting notices on procurement bulletin boards, soliciting potential offerors on an appropriate bidders list, advertising in local newspapers, and telephoning potential sources identified in local telephone directories.  See FAR 5.101(a)(2) & (b).
      5. Temporary Exceptions.  During contingency operations, Congress may authorize temporary exceptions to normal contacting and competition rules through authorization acts or annual or supplemental appropriations acts.  Examples in Afghanistan have included the Commander’s Emergency Response Program, Afghan First Program, and the SC-CASA Program (allowing preferences and set-asides for certain acquisitions from vendors in certain countries along major supply routes to Afghanistan). 

Methods of Acquisition – Sealed Bidding. This is the appropriate method if award is based only on price and price-related factors, and is made to the lowest, responsive, responsible bidder.  See FAR Part 14.

1. 1. 6. Sealed bidding procedures must be used if the four conditions enumerated in the Competition in Contracting Act exist.  10 U.S.C. § 3201(b)(1); FAR 6.401; see also Racal Filter Technologies, Inc., B-240579, Dec. 4, 1990, 70 Comp. Gen. 127, 90-2 CPD ¶ 453.  These four conditions, commonly known as the “Racal factors,” are:
         1. Time permits the solicitation, submission, and evaluation of sealed bids;
         2. Award will be made only on the basis of price and price-related factors;
         3. It is not necessary to conduct discussions with responding sources about their bids; and
         4. There is a reasonable expectation of receiving more than one sealed bid.
      7. Use of sealed bidding allows little discretion in the selection of a source.  Bids are solicited using Invitations for Bids (IFB) under procedures that do not allow for pre-bid discussions with potential sources.  A clear description/understanding of the requirement is needed to avoid having to conduct discussions.  Sealed bidding requires more sophisticated contractors because minor errors in preparing a bid can make the bid non-responsive and prevent the government from accepting the offer.  Only fixed-price type contracts are awarded using these procedures.  Sealed bidding procedures are rarely used during active military operations in foreign countries because it is usually necessary to conduct discussions with responding offerors to ensure their understanding of, and capability to meet, U.S. requirements.

Methods of Acquisition – Negotiated Procurements (also called “Contracting by Negotiation”). 

1. 1. 8. With this acquisition method, award is based on stated evaluation criteria, one of which must be cost, and is made to the responsible offeror whose proposal offers the “best value” to the government.  The contracting officer informs potential offerors up front whether best value will be based upon an offeror submitting the “lowest cost, technically acceptable” solution to the government’s requirement, or whether best value will be determined on a “cost-technical tradeoff” basis, which allows the government to accept a higher-priced offer if the perceived benefits of the higher-priced proposal outweigh the additional cost.  The basis for award (low-cost, technically-acceptable or cost-technical tradeoff), and a description of all factors and major subfactors that the contracting officer will consider in making this determination, must be stated in the solicitation.  See FAR Part 15.
      9. Negotiations are used when the use of sealed bids is not appropriate.  10 U.S.C. § 3201(b)(2).  Negotiations permit greater discretion in the selection of a source, and allow consideration of non-price factors in the evaluation of offers, such as technical capabilities of the offerors, past performance history, etc.  Offers are solicited by use of a Request for Proposals (RFP).  Proposals are submitted by offerors and are evaluated in the manner stated in the solicitation.  Consistent with the solicitation, the contracting officer may establish a competitive range comprised of the most highly rated proposals and conduct discussions with those offerors, after which those offerors submit revised proposals for evaluation.  Award is made to the offeror whose proposal represents the best value to the government.  Negotiations permit the use of any contract type.

Simplified Acquisition Procedures.

1. 1. 10. Thresholds.  Simplified procedures, specified in FAR Part 13, may be used for procurements below certain dollar amounts.  These amounts are specified in FAR Part 2.  This threshold is increased for procurements: (1) in support of a contingency operation as defined in 10 U.S.C. § 101(a)(13); (2) to facilitate defense against or recovery from a cyber, nuclear, biological, chemical, or radiological attack; or (3) to support response to an emergency or major disaster.  Presently, the base thresholds and the increased contingency thresholds are as follows:
          1. Department of Defense (DOD) Simplified Acquisition Threshold (SAT).  Though DoD sometimes increases its SAT and micro-purchase threshold via DoD Class Deviation, the DoD currently follows the thresholds specified in FAR 2.101.  Thus, the baseline SAT is $250,000.  However, for purchases in one of the three situations listed in paragraph E.1. above, including supporting a contingency operation, but made (or awarded and performed) inside the United States, the SAT is $800,000.  For purchases made (awarded and performed) outside the United States in the situations listed in E.1., the SAT is $1.5 million.  The SAT is $500,000 when the DOD is soliciting or awarding contracts to be awarded and performed outside the United States to support a humanitarian or peacekeeping operation.
          2. Micro-purchase threshold.  The normal DOD “micro-purchase threshold,” below which purchases may be made without competition, is $10,000.  10 U.S.C § 3573.  For purchases in one of the three situations in paragraph E.1., made (or awarded and performed) inside the United States, the micro-purchase threshold is $20,000.  For purchases in one of the three situations in paragraph 10 above made (or awarded and performed) outside the United States, the micro-purchase threshold is $30,000.  41 U.S.C. § 1903; FAR 2.101.
          3. Commercial products and commercial services.  Commercial products and commercial services, as defined in FAR 2.101, may be procured using Simplified Acquisition Procedures (SAP) using increased thresholds.  The normal commercial product or service  SAP threshold is $7,500,000.  For purchases supporting one of the three situations listed in paragraph 10, the threshold is $15,000,000.  41 U.S.C. § 1903; FAR 12.203(a); FAR 13.500(c). 
      11. The following are various methods of making or paying for these simplified purchases.  Most of these purchases can be solicited orally, except for construction projects exceeding $2,000 and complex requirements.  See FAR 13.106-1(d).  The types of simplified acquisition procedures likely to be used during a deployment are:
          1. Purchase Orders.  FAR Subpart 13.302; DFARS Subpart 213.302; AFARS Subpart 5113.302 and 5113.306 (for use of the SF 44).
          2. Blanket Purchase Agreements (BPA).  FAR Subpart 13.303; DFARS Subpart 213.303; AFARS Subpart 5113.303.
          3. Imprest Fund Purchases.  FAR 13.305; DFARS Subpart 213.305; DOD FMR vol. 5, para. 0209.
          4. Government Purchase Card Purchases.  FAR 13.301; DFARS 213.279, 213.301; AFARS Subpart 5113.2.
          5. Accommodation checks/government purchase card convenience checks. DOD FMR, vol. 5, ch. 2, para. 9.1; see also DFARS 213.270(c)(6).
      12. Purchase Orders.  FAR 13.302. A purchase order is an offer to buy supplies or services, including construction.  Purchase orders usually are issued only after requesting quotations from potential sources.  Issuance of an order does not create a binding contract.  A contract is formed when the contractor accepts the offer either in writing or by performance.  FAR 13.004. In operational settings, purchase orders may be written using three different forms.
          1. DD Form 1155 or SF 1449.  These are multi-purpose forms which can be used as a purchase order, blanket purchase agreement, receiving/inspection report, property voucher, or public voucher.  They contain some contract clauses, but users must incorporate all other applicable clauses.  FAR 13.307; DFARS 213.307; DFARS PGI 213.307.  See clause matrix in FAR Part 52.  When used as a purchase order, the KO may make purchases up to the simplified acquisition threshold.  Only KOs are authorized to use these forms.
          2. Standard Form (SF) 44.  This is a pocket-sized form intended for over-the-counter or on-the-spot purchases.  Clauses are not incorporated.  Use this form for “cash and carry” type purchases.  Ordering officers, as well as KOs, may use this form.  Reserve unit commanders may use the SF 44 for purchases not exceeding the micro-purchase threshold when a Federal Mobilization Order requires unit movement to a Mobilization Station or site, or where procurement support is not readily available from a supporting installation.  FAR 13.306; DFARS 213.306; AFARS 5113.306.  Conditions for use:
             1. As limited by KO’s warrant or FOO’s appointment letter.
             2. Away from the contracting activity.
             3. Goods or services are immediately available.
             4. Only one delivery and one payment will be made.
          3. Ordering officers may use SF 44s for purchases up to the micro-purchase threshold for supplies or services, except that purchases up to the simplified acquisition threshold may be made for aviation fuel or oil.  During a contingency operation, a contracting officer may make purchases up to the simplified acquisition threshold.  See DFARS 213.306(a)(1).
      13. Blanket Purchase Agreements (BPA).  FAR Subpart 13.303; DFARS 213.303-5; and AFARS 5113.303.  A BPA is a simplified method of filling anticipated repetitive needs for supplies or services essentially by establishing “charge account” relationships with qualified sources of supply.  They are not contracts, but merely advance agreements for future contractual undertakings.  BPAs set prices, establish delivery terms, and provide other clauses so that a new solicitation, negotiation, and performance work statement is not required for each purchase.  The government is not bound to use a particular supplier as it would be under a requirements contract.  KO negotiates firm fixed prices for items covered by the BPA, or attaches to the BPA a catalog with pertinent descriptions/prices.
          1. BPAs are prepared and issued on DD Form 1155 or SF 1449 and must contain certain terms/conditions.  FAR 13.303-3:
             1. Description of agreement.
             2. Extent of obligation.
             3. Pricing.
             4. Purchase limitations.
             5. Notice of individuals authorized to place purchase orders under the BPA and dollar limitation by title of position or name.
             6. Delivery ticket requirements.
             7. Invoicing requirements.
          2. KOs may authorize ordering officers and other individuals to place calls (orders) under BPAs.   FAR 13.303, AFARS 5113.303-2.  Existence of a BPA does not per se justify sole-source procurements.  FAR 13.303-5(c).  Consider BPAs with multiple sources.  If insufficient BPAs exist, solicit additional quotations for some purchases and make awards through separate purchase orders.
      14. Imprest Funds.  An imprest fund is a cash fund of a fixed amount established by an advance of funds from a finance or disbursing officer to a duly appointed cashier (pay agent).  The cashier disburses funds as needed to pay for certain simplified acquisitions.  Authorized individuals (ordering officers and contracting officers) make purchases and provide the receipts to the cashier.  When documented expenditures deplete the amount of cash in the imprest fund, the cashier may request to have the fund replenished.  FAR 13.305; DFARS 213.305; DOD 7000.14-R, FMR, vol. 5, ch. 2, para. 9.0.
          1. DOD activities are not authorized to use imprest funds unless approved by the Director for Financial Commerce, Office of the Deputy Chief Financial Officer, Office of the Under Secretary of Defense (Comptroller).  DFARS 213.305-3.  Exceptions to receiving approval at this level include (1) overseas transactions at or below the micro-purchase threshold in support of a declared contingency operation or humanitarian/peacekeeping operation, or (2) a classified transaction. DFARS 213.305-3. However, local policies may further restrict and regulate their use in such situations.
          2. DOD FMR vol. 5, ch. 2, para. 9.0, contains detailed guidance on the appointment, training, and procedures governing the use of imprest funds, to include permissible and prohibited expenditures.  Imprest fund cashiers should receive training in their duties, liabilities, and the operation of an imprest fund prior to deployment.
      15. Government-wide Purchase Card (GPC).  Authorized GPC holders may use the cards to purchase goods and services up to the micro-purchase threshold.  FAR 13.301(c).  In an OCONUS contingency operation, KOs may use the cards for purchases up to the SAT for commercial products and commercial services that are immediately available.  DFARS 213.301(3).  Overseas, even if not in a designated contingency operation, authorized GPC holders may make purchases up to $25,000 for certain commercial products/services for use outside the U.S., but not for work to be performed by workers recruited within the United States.  See DFARS 213.301 (containing additional limitations on and requirements for this authority).  The GPC can also be used as a payment instrument for orders made against Federal Supply Schedule contracts, calls made against a Blanket Purchase Agreement (BPA), and orders placed against Indefinite Delivery/Indefinite Quantity (IDIQ) contracts that contain a provision authorizing payment by purchase card.  FAR 13.301(c); AFARS 5113.202-90.  Funds must be available to cover the purchases.  Special training for cardholders and billing/certifying officials is required.  AFARS 5113.201(c).  Issuance of these cards to deploying units should be coordinated prior to deployment, because there may be insufficient time to request and receive the cards once the unit is in theater. 
      16. Accommodation Checks/Purchase Card Convenience Checks.  Commands involved in a deployment may utilize accommodation checks and/or GPC convenience checks in the same manner as they are used during routine operations.  Checks should only be used when Electronic Funds Transfer (EFT) or the use of the government purchase card is not possible.  See DOD FMR, vol. 10, ch. 23, para. 6.0. 
      17. Commercial Products and Commercial Services Acquisitions.   FAR Part 12.  Much of deployment contracting involves purchases of commercial products and services.  The KO may use any simplified acquisition method to acquire commercial products and services (for acquisitions up to the thresholds described in paragraph 10.c., or may use one of the other two acquisition methods (sealed bidding or negotiations).  All three acquisition methods are streamlined when procuring commercial items.  FAR Part 12 sets out a series of special simplified rules, to include a special form, simplified clauses, and streamlined procedures that may be used in acquiring commercial items.  However, any contract for commercial items must be firm-fixed-price or fixed-price with economic price adjustment.  FAR 12.207.
      18. Simplified Acquisition Competition Requirements.  The requirement for full and open competition does not apply to simplified acquisitions.  However, for simplified acquisitions above the micro-purchase threshold, there is still a requirement to obtain competition “to the maximum extent practicable,” which ordinarily means soliciting at least 3 quotes from sources within the local trade area.  FAR 13.104(b).  For purchases at or below the micro-purchase threshold, there is no competition requirement at all, and obtaining just one oral quotation will suffice so long as the price is fair and reasonable.  FAR 13.202(a)(2).  Additional simplified acquisition competition considerations:
          1. Micro-purchases.  While there is no competition requirement, micro-purchases shall be distributed equitably among qualified sources to the extent practicable.  FAR 13.203(a)(1).  Micro-purchases may be awarded without soliciting competitive quotations if the KO, GPC holder, or FOO considers the price reasonable. FAR 13.203(1)(2). Oral or electronic solicitations should be used as much as possible, but a written solicitation must be used for construction requirements over $2,000.  FAR 13.106-1(d).
          2. Simplified acquisitions above the micro-purchase threshold.  Because there is still a requirement to promote competition “to the maximum extent practicable,” KOs may not sole-source a requirement above the micro-purchase threshold unless the need to do so is justified in writing and approved at the appropriate level.  FAR 13.501.  Soliciting at least three sources is a good rule of thumb to promote competition to the maximum extent practicable. Whenever practicable, request quotes from two sources not included in the previous solicitation.  FAR 13.104(b).  Contracting officers normally should also solicit the incumbent contractor.  J. Sledge Janitorial Serv., B‑241843, Feb. 27, 1991, 91-1 CPD ¶ 225.
          3. Requirements aggregating more than the SAT or the micro-purchase threshold may not be broken down into several purchases merely to avoid procedures that apply to purchases exceeding those thresholds.  FAR 13.003(c)(2).
      19. Publication (Notice) Requirements.  Normally, contracting officers are required to publish a synopsis of proposed contract actions over $25,000 on the Government-wide point of entry (GPE) at SAM.gov.  15 U.S.C. § 637(e); 41 U.S.C. § 1708; FAR 5.101(a)(1) and FAR 5.203.  For actions estimated to be between $15,000 and $25,000, public posting (displaying notice in a public place) of the proposed contract action for 10 days is normally required.  15 U.S.C. § 637(e); 41 U.S.C. § 1708; FAR 5.101(a)(2).  None of these notice requirements exist if the disclosure of the agency’s needs would compromise national security.  15 U.S.C. § 637(g)(1)(B); 41 U.S.C. § 1708; FAR 5.101(a)(2)(ii) and FAR 5.202(a)(1).  Disclosure of most needs in a deployment would not compromise national security.  Still, the requirement to publish notice in SAM.gov is often not required in deployment contracting because there are other exemptions listed at FAR 5.202 that will often apply.  For example, publication is not required for contracts that will be made and performed outside the United States, and for which only local sources will be solicited.  FAR 5.202(a)(12).  Accordingly, notice of proposed contract actions overseas is accomplished primarily through public posting at the local equivalent of a Chamber of Commerce, bulletin boards outside the deployed contracting office, or other locations readily accessible by the local vendor community.  See FAR 5.101(a)(2) & (b).

Use of Existing Contracts to Satisfy Requirements. 

1. 1. 20. Existing ordering agreements, indefinite delivery contracts, and requirements contracts may be available to meet recurring requirements, such as fuel, subsistence items, and base support services.  Investigate the existence of such contracts with external and theater support contracting activities.  For a discussion of theater and external support contracts, see supra subpart III.C.
      21. Theater Support Contracts.  In developed theaters, the theater contracting activity (regardless of organizational type) may have existing indefinite quantity-indefinite delivery (IDIQ) contracts, BPAs, or requirements contracts available to efficiently satisfy a unit’s needs.  For example, C3 may have multiple award IDIQ contracts for base support services and security services.  If a unit has a requirement for either of these services, C3 may expeditiously award the task order to one awardee of the underlying IDIQ contract utilizing the “fair opportunity” to be considered procedures in FAR 16.5.  

Alternative Methods for Fulfilling Requirements.  New and existing contracts are not the only method of meeting the needs of deployed military forces.  The military supply system is the most common source of supplies and services.  Cross-servicing agreements and host-nation support agreements exist with NATO, Korea, and other major U.S. allies.  Similarly, under the Economy Act, other government agencies may fill requirements for deployed forces, either from in‑house resources or by contract.  Finally, service secretaries retain substantial residual powers under Public Law 85‑804 that may be used to meet critical requirements that cannot be fulfilled using normal contracting procedures.

1. 1. 22. Host nation support and acquisition and cross-servicing agreements (ACSA) are also means of fulfilling the needs of deployed U.S. forces and are addressed in 10 U.S.C. §§ 2341‑2350; governed by U.S. Dep’t of Defense, Dir. 2010.9, Acquisition and Cross-Servicing Agreements (31 Aug 2018); and implemented by Joint Chiefs of Staff, Instr. 2120.01A, Acquisition and Cross-Servicing Agreements (21 May 2015).  These authorities permit acquisitions and transfers of specific categories of logistical support, supplies, and services (LSSS) to take advantage of existing stocks in the supply systems of the U.S. and allied nations.  Transactions may be accomplished notwithstanding certain other statutory rules related to acquisition and arms export controls.  For further information, see Contract & Fiscal Law Dep’t, The Judge Advocate General’s Legal Center & School, U.S. Army, Fiscal Law Deskbook, ch. 10, Operational Funding (updated frequently and available online at https://tjaglcs.army.mil/publications).
      23. The Economy Act (31 U.S.C. § 1535) provides another alternative means of fulfilling requirements.  An executive agency may transfer funds to another agency, and order goods and services to be provided from existing stocks or by contract.  For example, the Air Force could have construction performed by the Army Corps of Engineers, and the Army might have Department of Energy facilities fabricate special devices for the Army.  Procedural requirements for Economy Act orders, including obtaining contracting officer approval on such actions, are set forth in FAR 17.5; DFARS 217.5; U.S. Dep’t of Defense, Instr. 4000.19, Support Agreements (16 Dec 2020); and DFAS-IN 37-1.  For further information, see Contract & Fiscal Law Dep’t, The Judge Advocate General’s School, U.S. Army, Contract Law Deskbook, ch. 11, Interagency Acquisitions (updated frequently and available online at https://tjaglcs.army.mil/publications).
      24. Extraordinary contractual actions under Public Law 85-804.  During a national emergency declared by Congress or the President and for six months after the termination thereof, the President and delegees may initiate or amend contracts notwithstanding any other provision of law whenever it is deemed necessary to facilitate the national defense.  Pub. L. No. 85-804, codified at 50 U.S.C. §§1431-1435; Executive Order 10789 (14 Nov. 1958); FAR Part 50; DFARS Part 250.  These powers are broad, but the statute and implementing regulations contain a number of limitations.  For example, these powers do not allow waiving the requirement for full and open competition, and the authority to obligate funds in excess of $75,000 may not be delegated lower than the Secretariat level.  This authority is rarely used. Additionally, despite this grant of authority, Congress still must provide the money to pay for obligations.

Leases of Real Property.  The Army is authorized to lease foreign real estate for military purposes.  10 U.S.C. § 2675.  True leases normally are accomplished by the Army Corps of Engineers using Contingency Real Estate Support Teams (CREST).

5. POLICING THE CONTRACTING BATTLEFIELD

Ratification of Contracts Executed by Unauthorized Government Personnel.  Only warranted KOs can legally bind the government in contract.  However, sometimes other government officials purport to bind the government.  This may occur, for example, when a commander directs a contractor to take actions beyond the scope of an existing contract or in the absence of a contract.  An “unauthorized commitment” is an agreement that is not binding on the government solely because it was made by someone who did not have authority to bind the government.  (FAR 1.602-3).

1. 1. 1. Because the person making the unauthorized commitment had no authority to bind the government, the government has no obligation to pay the unauthorized commitment.  However, someone with actual authority to bind the government may choose to subsequently ratify the unauthorized commitment. 
      2. Based upon the dollar amount of the unauthorized commitment, the following officials have the authority to ratify the unauthorized commitment (See FAR 1.602-3; AFARS 5101.602-3):
         1. Up to $10,000 – Chief of Contracting Office
         2. $10,000 - $100,000 – PARC or SCO
         3. Over $100,000 – HCA
      3. These officials may ratify only when (FAR 1.602-3(c)):
         1. The government has received the goods or services.
         2. The ratifying official has the authority to enter into a contractual commitment.
         3. The resulting contract would have been proper if made by an appropriate contracting officer.
         4. The price is fair and reasonable.
         5. The contracting officer recommends payment and legal counsel concurs, unless agency procedures do not require such concurrence.
         6. Proper funds are available and were available at the time the unauthorized commitment was made.

Extraordinary Contractual Actions.  If ratification is not appropriate, for example, where no agreement was reached with the supplier, the taking may be compensated as an informal commitment. FAR 50.102-3; 50.103-2(c).  Alternatively, the supplier may be compensated using service secretary residual powers.  FAR Subpart 50.104.

1. 1. 4. Requests to formalize informal commitments must be based on a request for payment made within 6 months of furnishing the goods or services, and it must have been impracticable to have used normal contracting procedures at the time of the commitment.  FAR 50.102-3(d).
      5. These procedures have been used to reimburse owners of property taken during the Korean War (AFCAB 188, 2 ECR § 16 (1966)); in the Dominican Republic (Elias Then, Dept. of Army Memorandum, 4 Aug. 1966); in Jaragua S.A., ACAB No. 1087, 10 Apr. 1968; and in Panama (Anthony Gamboa, Dep’t of Army Memorandum, Jan. 1990).

Contract Disputes Act (CDA) Claims.  If the contractor believes it can meet its burden in proving an implied-in-fact contract, it can appeal a contracting officer's final decision to the United States Court of Federal Claims (COFC) or the cognizant board of contract appeals.  41 U.S.C. §§ 7101-7109; FAR Subpart 33.2.

Contracting With the Enemy. 

5. 1. 6. Section 841 of the FY2015 NDAA (Pub. L. 113-291), as amended by Section 820 of the FY2023 NDAA (Pub. L. 117-263) prohibits contracting with or otherwise providing funds to a person or entity that is actively opposing the U.S. or coalition forces in a contingency operation.  This requirement applies to any contract, grant, or cooperative agreement over $50,000 performed outside the U.S. in support of a contingency operation in which the U.S. armed forces are actively engaged in hostilities.
      7. Section 842 of the FY2015 NDAA (Public Law 113-291) requires the inclusion of a contract term for contracts covered by sections 841 and 842 that allow the government to inspect “any records of the contractor” or subcontractor to ensure contract funds are not going to support groups opposing U.S. or coalition forces.
      8. Both of these provisions are implemented by DoD Class Deviation 2020-O0022, available at https://www.acq.osd.mil/dpap/dars/class_deviations.html.  The Class Deviation includes three different contract clauses to include depending on the type and value of contract involved.
6. CONCLUSION

Individuals who have little to no contracting experience often spend staggering sums of money in support of their unit’s mission.  The most important thing to remember when dealing with the expenditure of appropriated funds—whatever the vehicle or mechanism—is that each decision to spend money carries consequences.  To that extent, it is worth the time and effort to prepare, research, reach out, and be diligent to adhere to contracting rules and regulations. Judge Advocates are encouraged to develop reach-back relationships prior to deployment, both within their command and outside, so difficult questions can be answered accurately and quickly.

7.  REFERENCES.
   1. General Servs. Admin. et al., Federal Acquisition Reg. (Jan. 2022) [FAR]; U.S. Dep’t of Defense, Defense Federal Acquisition Reg. Supp. (Jan. 2022) [DFARS]; service supplements, all available at https://www.acquisition.gov.
   2. Joint Chiefs of Staff, Joint Pub. 4-0, Joint Logistics (8 May 2019) [JP 4-0].
   3. Joint Chiefs of Staff, Joint Pub. 4-10, Operational Contract Support (4 Mar. 2019) [JP 4-10].
   4. Defense Contingency Contracting Handbook:  Essential Tools and Information to Meet Contingency Contracting Needs for the 21st Century, v.5., (Apr. 2017), https://www.acq.osd.mil/asda/dpc/cp/cc/ctr-handbook.html.
   5. U.S. Dep’t of Army, Reg. 715-9, Operational Contract Support Planning and Management (24 Mar. 2017) [AR 715-9]
   6. U.S. Dep’t of Army, Reg. 700-137, Logistics Civil Augmentation Program (LOGCAP) (23 Mar. 2017) [AR 700-137].
   7. U.S. Dep’t of Army, Field Manual 1-04, Legal Support to Operations (Jun. 2020) [FM 1-04].
   8. U.S. Dep’t of Army, Army Techniques Publication 4-71, Contracting Support Brigade to Unified Land Operations (Jun. 2021) [ATP 4-71].
   1. U.S. Dep’t of Army, Field Manual 1-06, Financial Management Operations (Apr. 2014) [FM 1-06].
   10. Defense Pricing and Contracting (DPC), https://www.acq.osd.mil/asda/dpc/index.html (training materials, checklists, policy documents, acquisition instructions, and contract clauses).