Now it is true that the prohibition against the use of privately owned firearms can be waived or modified, but only by the Deputy Commander in Chief, USCENTCOM, or his designee under General Order No. 1A, or the Deputy Commander and Chief of Staff, USCENTCOM, or his designee, under General Order No. 1B. The contracting officer is the only authorized official who shall increase, decrease, or alter the scope of work to be performed, and any orders or instructions interpreted by the contractor as impacting the scope or cost of the contract.
In November 2005, KBR and the Army executed Modification 00012 to the LOGCAP III contract to incorporate Defense Federal Acquisition Regulation Supplement {} .252.225‑7040, which effectively allowed KBR and its subcontractors limited use of privately owned weapons. Consistent with USCENTCOM General Order No. 1 A, Modification 00012 clearly states that privately owned weapons can be used only if authorized by the Combatant Commander who, for Iraq, is the USCENTCOM Commander. Modification 00012 also required approval by the contracting officer. With possible minor exceptions; KBR never obtained such authorization or approval either for itself or for any of its subcontractors.
While USCENTCOM General Order Nos. 1A and 1 B, and LOGCAP III Modification 00012 address the use of privately owned weapons, LOGCAP III, Clause H‑21, addresses the use of government furnished weapons. The permissible use of government furnished weapons, however, is no different in terms of authorization than the use of privately owned weapons. In other words, the use of government furnished weapons is strictly forbidden unless authorized by the USCENTCOM Commander. Clause H‑21 also repeats the prohibition on privately owned weapons and imposes on KBR the duty to ensure that its employees and subcontractors comply with United States and Iraqi laws.
LOGCAP III, Clause H‑13, also required KBR to comply with orders and directives issued by the Coalition Provisional Authority (CPA), and to ensure similar compliance by its subcontractors] CPA Order No. 3, Section 3 (Dec. 31, 2003), required private armed security companies to be licensed by the Iraqi Ministry of the Interior. CPA Memorandum No. 17, Section 6 (June 26, 2004), required private security companies to be registered with the Iraqi Ministry of the Interior. Not all of KBR’s subcontractors complied with CPA Order Nos. 3 and 17, nor did KBR meet its obligation to ensure compliance.
In the past private security contractors have acknowledged they did not comply with Ministry of Interior requirements because they believed the Ministry was infiltrated by insurgents and could use such information to help plan attacks against contractors.
Thus, the possession and use of both privately owned and government furnished firearms by KBR and its subcontractors were strictly prohibited unless authorized by the USCENTCOM Commander, or his designee, and approved by the contracting officer. But this did not leave KBR and its subcontractors without force protection. Consistent with the restrictions and prohibitions on private armed security, LOGCAP Ill, Clause H‑16, assigned primary, if not sole, responsibility for force protection for KBR and its subcontractors to the military at a level “commensurate with that given to [DoD] civilians in the operations area.”
Thus, more than 30 of KBR’s other subcontractors used private armed security in Iraq without required authorization. KBR either knew that these subcontractors were using unauthorized and, therefore, prohibited private armed security, or did not ensure that their use of private armed security was authorized as it was required to do under LOGCAP III.
In particular, ESS Support Services Worldwide (ESS), a dining facilities subcontractor, routinely hired private armed security companies to shuttle managers, personnel, and payroll around Iraq, rather than arrange to travel with military convoys as required by LOGCAP III. ESS also used private armed security to provide static guards for its offices in Iraq, rather than rely on military force protection, again in violation of LOGCAP III. KBR knew that ESS hired private armed security and either knew or should have known that the cost of these services inflated the cost of ESS’ subcontracts. KBR had awarded the subcontracts without adequate price competition and with reckless disregard for the costs that it would be passing on to the Army. ESS incurred significant costs for unauthorized private armed security costs, which KBR passed on to the Army, plus associated fees, under LOGCAP III.
Those who remember the murder of the four Blackwater contractors at Fallujah, Iraq in 2004 will recall that Blackwater contracted with ESS to provide security for food shipments to U.S. bases in Iraq. The contract called for security teams to have two armored vehicles and a minimum of six personnel, as well as a heavy machine gun that could fire up to 850 rounds per minute.
I can’t help but wonder if their deaths might have been avoided if someone in government had been smart enough to disallow the invoices submitted by KBR for the private security work it was not authorized to contract out.
After all KBR knew its claims were false. As the suit points out: