Briefing Book


Problem-Solving Workshop: A New Legal Framework for Military Contractors? Part II

January 11, 2008

Recommended Readings for 11 January 2008 Workshop on Privatization and Contractor Management

General Background

Paul R. Verkuil, Public Law Limitations on Privatization of Government Functions, 84 N.C. L. Rev. 397 (2006). Read Part IIIB (pp. 438-448)and Part V through the end (pp. 455-469).

Charles Goodsell, "Six Normative Principles for the Contracting-Out Debate," Administration and Society (2007)

Michael J. Trebilcock and Edward M. Iacobucci, "Public Values in an Era of Privatization: Privatization and Accountability," 116 Harvard Law Review 1422 (2003).

Steven L. Schooner, "Contractor Atrocities at Abu Ghraib: Compromised Accountability in a Streamlined, Outsourced Government," 16 Stan. L. Pol'y Rev. 549 (2005)

Reports and Investigations

Report of the Secretary of State's Panel on Personal Protective Services in Iraq, October 2007.

CRS Report for Congress, "Defense Contracting in Iraq: Issues and Options for Congress," updated November 2007. Particularly pp. 11-23.

Report of the Commission on Army Acquisition and Program Management in Expeditionary Operations (Gansler commission), "Urgent Reform Required: Army Expeditionary Contracting," October 2007. Particularly pp. 1-12.

The Law

HR 2740 as passed.

Federal Activities Inventory Reform Act, 31 U.S.C. § 501, Pub. L. No. 105-270, 112 Stat. 2382 (1998), as amended through 2 January 2008. (which requires the conduct of inventories of all agency activities to determine whether they are commercial or inherently governmental).

Office of Management and Budget Government Circular A-76: OMB Circular A-76 & Attachment A. The circular directs agencies first to identify all activities performed by government personnel as either commercial or inherently governmental; second, to perform inherently governmental activities with government personnel; and third, to use a streamlined or standard competition to determine if government personnel should perform a commercial activity.
web link

Brian X. Scott, 2006 CPD ¶ 125, at 5.

Title VIII of the Defense Authorization Act
web link

For Additional Reference

Deborah Avant, "Think Again: Mercenaries," Foreign Policy, July/August 2004, p. 20

Michael J. Davidson "Ruck Up: An Introduction to the Legal Issues Associated with Civilian Contractors on the Battlefield, 29 Pub. Cont. L.J. 233, 256-58 (2000).

Flagg Bros. v. Brooks, 436 U.S. 149 (1978).

Dan Guttman, "Governance by Contract: Constitutional Visions: Time For Reflection and Choice," 33 PUB. CON. L.J. 321, 339 (2004)

Dan Guttman, "The Shadow Pentagon," Center for Public Integrity, Oct. 8, 2004,
web link.

Implementation of the Federal Activities Inventory Reform (FAIR) Act of 1998, 64 Fed. Reg. 33,927 (June 24, 1999).

Gillian Metzger, "Privatization as Delegation," Columbia Law Review, Vol. 103, No. 6., pp. 1367-1502.

Jon D. Michaels, "Beyond Accountability: The Constitutional, Democratic, and Strategic Problems with Privatizing War," 82 Wash. U. L.Q. 1001 (2004).

Martha Minow, "Outsourcing Power: How Privatizing Military Efforts Challenges Accountability, Professionalism, and Democracy," 46 B.C. L. Rev 989 (2005).

Major Mark A. Ries, "Contractors Accompanying the Force," 2007-JAN Army Law. 161 (2007).

Steven L. Schooner, "Competitive Sourcing Policy: More Sail Than Rudder?" 33 PUB. CON. L.J., 263, 274 (2004).

Bruce Shirk, "California's Proposition 35: State Contracts for Professional Architectural and Engineering Services and the Federal Model for Competitive Sourcing," Government Contract, Reprinted from Volume 21, Issue 11. September 24, 2007.

Swiss Government Initiative on the Regulation of Military Contractors.
November meeting summary
January meeting summary

U.S. Government Accountability Office, GAO-02-847T, Commercial Activities Panel: Improving the Sourcing Decisions of the Government: Final Report 7 (2002)
web link

Full texts of the bill that eventually passed the House (HR 2740), including the text as introduced, reported, and placed on the senate calendar are included as PDF files below. Also included in PDF format are the House Committee Report on the bill, the Lexis Bill Tracking Report for HR2740, and Lexis Bill Tracking Reports for two bills from 2004 on this topic. Links are also provided to the Thomas bill tracking reports for the House and Senate versions of the legislation. These reports detail each step taken on the bills and contain information about amendments as well as links to Congressional Record references to these bills.

HR 2740
HR 2740 as introduced.
HR 2740 as placed in the Senate calendar.
HR 2740 as reported.
HR 2740 House Committee report.
HR 2740 Lexis Bill Tracking Report.
HR 2740 Thomas Bill Tracking Reports
THOMAS Bill Tracking Report for 110HR2740
THOMAS Bill Tracking Report for 110HR369
THOMAS Bill Tracking Report for 110S674
THOMAS Bill Tracking Report for 110S2147

Two Bills from 2004
Bill Tracking Report for HR 4387
Bill Tracking Report for HR 4390

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