Pentagon could open itself to costly litigation from contractors if US pulls out Afghanistan this year

Despite the signing of the Doha agreement last February that called for a full drawdown of US troops and personnel from Afghanistan by May 1, the Department of Defense issued nearly a billion dollars in contracts to 17 different companies related to work in Afghanistan past the withdrawal date. There are currently some 18,000 contractors in the country, of which 6,350 are American citizens.

With the deadline rapidly approaching and no formal decision from the White House, the future of the contracts, some of which have completion dates in 2023 and beyond, remains unclear, but the Pentagon could potentially have to pay hundreds of millions in settlements or face years of litigation if the US pulls out of the country on schedule or by the end of the year as President Joe Biden suggested is likely.

“If they have a billion dollars worth of contracts, they’re going to have a barrel full of lawsuits on their hands, unless they’re willing to settle for whatever amount the contractors can ask for,” said Dov Zakheim, the former Chief Financial Officer for the Defense Department.

Biden suggested Thursday the US would not meet the May 1 withdrawal deadline but said he “can’t picture” the US having troops in Afghanistan next year.

“We are not staying for a long time,” he said at his first press conference. “We will leave. The question is when we leave.”

Biden was asked specifically about US troops in Afghanistan, but the Doha agreement, signed on February 29 of last year, also calls for the removal of “non-diplomatic civilian personnel, private security contractors, trainers, advisers, and supporting services personnel.”

Yet their immediate future is as unclear as the outlook on a troop withdrawal.

“The general trend regarding the number of DoD contractors in Afghanistan continues to scale downward. It remains too early to speculate on whether it will continue to do so on-par with that of potential troop drawdowns as no decisions have been made regarding future force levels in Afghanistan,” said Pentagon spokesman Maj. Rob Lodewick.

More contractors have been killed in Afghanistan than US troops

Since the beginning of America’s longest war, contractors have paid a higher price than service members. According to the Washington Post’s Afghanistan Papers, 3,814 contractors had been killed in Afghanistan as of late-2019, as opposed to approximately 2,300 troops.

At the height of the Afghanistan troop surge between 2011 and 2012, there were 99,800 US service members in the country and 117,227 contractors, according to data from the Congressional Research Service. But as the number of troops in Afghanistan declined, contractors began to vastly outnumber troops. There are now approximately 2,500 troops in Afghanistan, but 18,000 contractors. Nearly half of those contractors work in base support, logistics or maintenance, while the rest fill roles in security, training, construction, and more.

They may be more critical to the stability of the country and the Afghan government than US and allied troops, the Special Inspector General for Afghanistan Reconstruction (SIGAR) John Sopko said.

“Why? Because the Afghan government relies on these foreign contractors and trainers to function,” Sopko told the Center for Strategic and International Studies in mid-March. “Should [the withdrawal] come to pass, SIGAR and many others believe this may be more devastating to the effectiveness of the Afghan security forces — and the survival of the Afghan state as we know it — than the withdrawal of our remaining military forces.”

The contractors maintain equipment, manage supply chains, conduct military and police training and operate the advanced equipment brought into the country.

“As of December, the Afghan National Army was completing just under 20 percent of its own maintenance work orders, well below the goal of 80 percent,” Sopko said. The Afghan National Police were even further behind, completing 12 percent of their own maintenance, short of a much more modest goal of 35 percent.

Even with the withdrawal deadline approaching, and the need for a decision growing more imminent, the Defense Department has issued more contracts for work in Afghanistan.

Some of these contracts may be canceled under what’s called “Termination for Convenience of the Government,” where the contracts are ended “in the Government’s interest.” The contractor can then agree to a settlement with the government, or the contractor sue if they don’t agree upon a settlement, explained Zakheim, who also served as the Defense Department’s coordinator of civilian programs in Afghanistan under President George W. Bush.

“That’s really the issue. The government can’t just say, ‘The hell with you.'” said Zakheim. “The thing about termination for convenience is that the government is probably going to have to pay the contractor.”

Contracts agreed after withdrawal date was set

On March 12, exactly 50 days before the May 1 deadline, the Defense Department signed a contract with Textron Systems Corp. for $9.7 million for “force-protection efforts” at Bagram Air Base in Afghanistan, including unmanned aerial systems, intelligence, reconnaissance, and more. The work was expected to be completed by March 2022, long after the stated deadline.

One day earlier, the department signed a contract with Salient Federal Services for $24.9 million for information technology infrastructure in Afghanistan. The contract has the same completion date of March 2022.

Notably, two fixed-firm-price security contracts totaling $68.2 million with Aegis Defense Services, a private security service, have completion dates in late-2023 and early-2026. The company did not respond to a CNN request for comment.

In total, there are at least 18 contracts totaling $931 million issued since the Doha agreement was signed on February 29, 2020, related to Afghanistan with completion dates after the May 1st withdrawal deadline. Some contracts, such as the deals for Textron Systems Corp. and Salient Federal Services, deal exclusively with Afghanistan. Others, such as a $383.3 million contract from April 2020, deal with the production of M16A4 military rifles for multiple countries, including Afghanistan.

The vast majority of the contracts – $821.2 million – were signed under the Trump administration, which began drawing down the number of troops very quickly following the signing of the Doha agreement between the administration and the Taliban. Within one year, the former administration drew down the level of troops from approximately 13,000 to the current level of 2,500, making clear the intent to leave Afghanistan fully by the May 1st deadline.

Three of the contractors contacted by CNN declined to offer any specifics on plans past May 1. One cited operational security requirements, while another pointed to the different possibilities, saying, “There are a lot of potential scenarios and it would be difficult to know what may or may not happen.”