Vendor vetting of non-US contractors in Afghanistan

• Published in: The Procurement Lawyer Vol. 50; no. 4; p. 1
• Main Authors: Sander, Brett, Romero, Joe
• Format: Journal Article Trade Publication Article
• Language: English
• Published: Chicago American Bar Association 22.06.2015
• Subjects: Afghanistan War; Contract law; Contractors; Corruption in government; Defense contracts; Due diligence; Government contractors; Government contracts; Insurgency; Laws, regulations and rules; Legislation; Military procurement; Military withdrawals; Public officials; Rebellions; Suspension (Punishment); Task forces; United States > US; Afghanistan
• ISSN: 1079-073X

In application, it is important to note that the vendor vetting process is essentially a risk management tool. It identifies contractors who pose a force protection risk to United States or coalition forces because they have "clear ties to the insurgency or... are involved in nefarious activities."33 The process is initiated by requiring non-US contractors to register in a system of record known as the Joint Contingency Contracting System (JCCS).36 During this registration process, the non-US contractor provides identifying information, including the name of the company, names of company key personnel, and business license numbers.3' Second, this information is submitted by the contracting officer to the VVRC for vetting.38 As part of its assessment, the VVRC assigns the contractor a force protection risk rating of moderate, significant, high, or extremely high.39 A high or extremely high rated company will be subject to additional review by a validation panel to determine whether the contractor should be "approved" or "rejected" based on the VVRC's "intelligence assessment."40 If the contractor is "rejected," it is ineligible to receive contract awards in Afghanistan.41 A waiver or exception to policy to allow a "rejected" contractor to receive a contract can only be granted by the appropriate deputy commander for USFOR-A, upon request of the battle space owner.42 If a contractor is given a "rejected" rating, the contractor is normally not informed. In fact, the contracting officer is usually not allowed to discuss the contractor's ineligibility.43 The contractor will only be informed of its "rejected" rating if the contractor has requested a debriefing following the award of the contract and the contractor would have been awarded the contract except for its "rejected" status.44 If the contractor requests a debriefing, it will only be notified that it was "determined to be ineligible for award" and is not entitled to be informed of the reasons it was determined to be ineligible. Upon notification, the contractor has 60 days to submit a written request for reconsideration of this determination. The acquisition instruction states that a contractor who is not the "apparent successor" and has not asked for a debriefing has no right to be informed of its ineligible status.43 The secrecy in the vendor vetting process means that a contractor may never learn that it is barred from eligibility to receive awards for DOD contracts in Afghanistan. The [CoFC] acknowledged that, "due process normally requires that a contractor receive notice of the charges impugning its integrity and an opportunity to be heard."50 In a contingency operation, however, the CoFC noted that "the requirements of due process vary given the circumstances."'1 According to the CoFC, conferring traditional due process rights of notice and the right to present rebuttal evidence to a contractor in a contingency operation could "compromise national security" because it could "endanger military intelligence sources" and "provide information to entities that pose a potential threat to the United States, thereby placing United States forces and operations at risk."52 Citing the Tucker Act and other relevant precedents, the CoFC found that "MG AA was not entitled to receive formal notice of, or an opportunity to respond to its vendor vetting rating" due to national security interests.'3 Thus, the de facto debarment was allowed to stand without the normal due process rights to which a contractor is entitled. CENTCOM's reliance on the vendor vetting process does not bode well for contractors. Contractors will continue to be subject to a classified or secret "rejected" list without much recourse or due process rights. A contractor challenging the DOD's non-use of section 841 will not find a remedy in the newest version of 841, as "it [section 841] is not to the exclusion of any other authorities available to executive agencies to implement policies."64 Based on the number of contractors in Afghanistan, high numbers of contractors will likely be used in future contingency operations. Experts in the field have noted that more transparency in contingency contracting could actually benefit the DOD. For example, SIGAR recommended to the director of the Office of Defense Procurement and Acquisition Policy (DPAP) that prime contractors be informed of section 841 designees.65 Section 841 requires contractors to exercise due diligence to avoid contracting with entities or persons that actively support the insurgency or oppose US and coalition forces. Combatant commands with intelligence programs, such as the VVRC program in Tampa, have unique access to classified information regarding such persons or entities that could help contractors exercise due diligence. Rather than placing risky contractors on a secret list, the DOD might consider disclosing the list to other contractors in the region so that the risky contractors can be avoided for use as sub-contractors. Such secretiveness runs counter to similar open-information sources for compliance in government contracts that could affect national security-the Office of Foreign Assets Control uses the Specially Designated Nationals and Blocked Persons list, the System for Award Management lists contractors that have been debarred, the Department of Commerce has an entity list. A frank dialogue between the defense contractors, Congress, and DPAP about the future of section 841 and its proper application in contingency operations would facilitate and further DOD's mission of preventing a repeat of the flow of DOD funds to insurgents in contingency operations, as well as unnecessarily placing contractors on secret "de facto" debarment lists.