Contracting for Wartime Actors: The Limits of the Contract Paradigm

Wartime contracts raise challenges to the classic contract doctrines of performance and remedies. First, privatization of numerous military and support functions (even support services such as trucking, laundry and food preparation) has placed private sector contractors in active war zones leading to difficulty in contract performance and injury or death to some contractors. Second, privatization of these functions necessitates that the government employ a functional supervisory system that ensures accountability to the government for contractor actions. How prepared is contract law to resolve disputes raised by these scenarios? This essay explores the role of contract in wartime and, in particular, reconstruction and the shortcomings of trying to use contract law in its current form to achieve the goals contemplated by the architects of the Iraq war. First, it considers the use of government contracts to privatize numerous government functions during the reconstruction and conflict in Iraq. Second, it considers the private ordering by contract done by government contractors to obtain security and related services from third parties. Both types of contracting raise complicated issues, including the proper use of force, to what extent the contracts should have government oversight, to what extent contractors should be accountable for crimes and whether contractors qualify as noncombatants in case of capture. Heavy reliance on contract law to address these problems raises complicated issues of delegation, performance, breach, assumption of risk, excuse and remedies. The general parameters of contracting with the U.S. government shall serve as a precursor to this discussion.