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Joshua Foust U.S. Senate Testimony - Improving Government Roles and Oversight in Intelligence Contracting

Joshua Foust U.S. Senate Testimony - Improving Government Roles and Oversight in Intelligence Contracting

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www.AmericanSecurityProject.org1100 New York Avenue, NW Suite 710W Washington, DC
Making Intelligence Contracting Smarter:Reexamining Government Roles and Oversight
September 20, 2011
estimony prepared or the U.S. Senate Committee on Homeland Security andGovernment Aairs, Subcommittee on Oversight o Government Management, theFederal Workorce, and the District o ColumbiaHearing on “Intelligence Community Contractors:Are We Striking the Right Balance?
Joshua FoustFellow, American Security Project
 
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 AMERICAN SECURITY PROJECT
INTRODUCTION
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hairman Akaka, Senator Johnson, and distinguished Members: Tank you or inviting me to speak about Intelligence Community contracting. Tere is broad public agreement that the governmentmust take measures to respond to the explosive growth o contracting in the Intelligence Com-munity (IC) during the past decade. Te government tends to contract out services when it does not haveemployees with the skill set to perorm a unction (like building a surveillance drone), or when it needs torapidly ll personnel gaps in a new program area. In the ten years since the September 11 attacks, however,contractors have grown rom lling gaps in the intelligence community to being a large percentage o thepeople working on behal o the country’s intelligence agencies.Tis public consensus that contracting must be curtailed is based on the assumption that contracting hasgrown beyond anyone’s ability to control it, that it results in widespread raud, waste, and abuse, and thatthe undamental nature o contracting presents analysts, agents, and ocers o the intelligence community with irreconcilable conicts o interest. Tese are the wrong issues to worry about. Rather, while those as-sumptions about contracting are sometimes true, they do not address the real problems plaguing the IC’suse o contractors.Te biggest problem acing the IC contracting industry is not that some contractors abuse the system, butthat the government has designed a system that encourages abuse. Missing in the public examination o theIC contracting industry—best exemplied in the op Secret America series o articles published over thelast year by the Washington Post,
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but also covered by countless other journalists and analysts—is the rolethe government itsel plays. Ultimately, the government is responsible or the conduct o the companies itcontracts to perorm unctions; while violations o the rules in place merit investigation and prosecution,contractor behavior labeled as “misconduct” is ofen perectly legal and within the bounds o the contractagreements companies sign with their government clients.I argue in this testimony that the rst step in xing the issues we associate with IC contractors really beginswith xing the government. I propose that by examining the system o intelligence contracting, we can bestunderstand the systemic challenges acing the contracting reorm.In this testimony, I will examine one situation involving a contractor by name, but I do not intend to singleout that company or wrongdoing. Rather, it happens to represent a very high prole example o how thesystem o contracting invites questionable conduct. Similarly, while I will speak rom personal experienceand in all likelihood will implicate other contractors and agencies, I do not mean to imply they are ex-amples o misconduct. Rather, I believe the issues I highlight this morning to be systemic in nature and notthe ault o any particular company or agency.
FIXING THE GOVERNMENT
Te current state o IC contracting is incoherent. Tere is broad conusion about the nature o what are ap-propriate government roles and contractor roles, along with inconsistent accountability and poor resourc-ing or accountability mechanisms. Contracts are ofen worded vaguely or incompletely, and ever-changing
 
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requirements, deliverables, and perormance metrics (all o which are supposed to catalogue and recordhow a company ullls a contract) create an environment rie or exploitation by companies seeking toextract revenue rom the process.
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Perhaps the most prominent example is the “blanket-purchase agreement” awarded by the Departmento the Interior (DoI) to the contracting rm CACI in 1998 to supply, among other services, inventory control or the U.S. Army. Te contract was worded vaguely, with poor government controls, and itsstructure—the contract was awarded by the DoI but administered by the Department o the Army—made accountability dicult i not impossible.
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By 2004, CACI contractors, hired under this inventory and logistics contract, had been assigned to the interrogation acility at Abu Ghraib in Iraq. While noneo the contractors involved in prisoner interrogation were indicted or misconduct, the vaguely-wordedcontract awarded by the government allowed or the contractors it hired to be used inappropriately.Most contracts never approach that level o questionable conduct, however. Rather, through vaguelanguage, open-ended requirements, and unclear perormance metrics these contracts allow companiesto send workers into government acilities without clear expectations or work output and job peror-mance. Worse still, even or multi-million-dollar contracts I have personally encountered poorly trainedgovernment Contracting Ocer Representatives (COR) who only perorm their COR duties part time,and must perorm other duties assigned by their superiors.It is dicult in many cases or the government to keep track o all contractor activities on a given proj-ect.
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Te problem o poor government oversight should not imply simply more unding as a solution. Fund-ing will not address the issue o contract wording, nor will it x the very real cases o the governmentasking contractors to perorm inappropriate tasks. Tis is where a more stringent denition—createdin conjunction with Congress and the Director o National Intelligence—o what constitutes inherently governmental job unctions will allow or tighter contract wording, and thus less opportunity or inap-propriate conduct. An enorcement mechanism, whereby contracts can be ended or amended withoutpenalty or improper job assignment, would also help to address this problem. Te only way to arrive ata proper denition o what constitutes an inherently government job is to dene the nature o the jobsthe IC must hire or. Right now, many o those jobs remain so vague as to be indenable.
THE SLOPPY GOVERNMENT CONTRACT
Every contract the government issues or a company to perorm work is dened by the Statement o Work (SOW). Tis is a document that denes the parameters o the work the contractor will perorm,including a description o the project, expected duties the contractor must ulll, and the outputs andmetrics by which perormance will be measured. Tese are ofen poorly written, kept intentionally  vague, and wind up not actually addressing the stated intent o the contracts.As one example, every SOW I’ve had to either administer, edit, review, or write has stated as a basicmetric o perormance the number o employees the contractor should hire. Tat is, the basic means by 

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