[Federal Register Volume 69, Number 56 (Tuesday, March 23, 2004)]
[Proposed Rules]
[Pages 13500-13503]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-6236]
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DEPARTMENT OF DEFENSE
48 CFR Parts 207, 212, 225, and 252
[DFARS Case 2003-D087]
Defense Federal Acquisition Regulation Supplement; Contractors
Accompanying a Force Deployed
AGENCY: Department of Defense (DoD).
ACTION: Proposed rule with request for comments.
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SUMMARY: DoD is proposing to amend the Defense Federal Acquisition
Regulation Supplement (DFARS) to address issues related to contract
performance outside the United States. The proposed rule contains a
clause for use in contracts that require contractor employees to
accompany a force engaged in contingency, humanitarian, peacekeeping,
or combat operations.
DATES: Comments on the proposed rule should be submitted in writing to
the address shown below on or before May 24, 2004, to be considered in
the formation of the final rule.
ADDRESSES: Respondents may submit comments directly via the Internet at
http://emissary.acq.osd.mil/dar/dfars.nsf/pubcomm. As an alternative,
respondents may e-mail comments to: [email protected]. Please cite DFARS
Case 2003-D087 in the subject line of e-mailed comments.
Respondents that cannot submit comments using either of the above
methods may submit comments to: Defense Acquisition Regulations
Council, Attn: Ms. Amy Williams, OUSD(AT&L)DPAP(DAR), IMD 3C132, 3062
Defense Pentagon, Washington, DC 20301-3062; facsimile (703) 602-0350.
Please cite DFARS Case 2003-D087.
At the end of the comment period, interested parties may view
public comments on the Internet at http://emissary.acq.osd.mil/dar/dfars.nsf.
FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, (703) 602-0328.
SUPPLEMENTARY INFORMATION:
A. Background
This rule proposes amendments to the DFARS to add policy relating
to contracts that require contractor employees to accompany a force
engaged in contingency, humanitarian, peacekeeping, or combat
operations outside the United States. The proposed changes will enable
the uniform treatment of contractors that accompany a deployed force,
and will enable combatant commanders to rapidly adjust contract
requirements in response to changing conditions on the battlefield.
In addition, as a result of the DFARS Transformation initiative,
this rule proposes to move text from DFARS 225.802-70 to the new DFARS
companion resource, Procedures, Guidance, and Information (PGI). A
proposed rule describing the purpose and structure of PGI was published
at 69 FR 8145 on February 23, 2004. Additional information on the DFARS
Transformation initiative is available at http://www.acq.osd.mil/dpap/dfars/transf.htm. A draft version of the PGI text referenced in this
proposed rule is available at http://www.acq.osd.mil/dpap/dfars/changes.htm.
DoD particularly seeks comment on the following aspects of the
proposed rule:
Paragraphs (p) and (q) of the proposed clause,
which permit the Combatant Commander to provide direction to the
contractor.
The authority and liability of the Government
for providing support services, such as medical or legal services, to
contractor personnel (section 225.7402-1 of the proposed rule).
This rule was not subject to Office of Management and Budget review
under Executive Order 12866, dated September 30, 1993.
B. Regulatory Flexibility Act
DoD does not expect this rule to have a significant economic impact
on a substantial number of small entities within the meaning of the
Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the rule
applies only to contracts that require contractor employees to
accompany a force engaged in contingency, humanitarian, peacekeeping,
or combat operations outside the United States. Therefore, DoD has not
performed an initial regulatory flexibility analysis. DoD invites
comments from small businesses and other interested parties. DoD also
will consider comments from small entities concerning the affected
DFARS subparts in accordance with 5 U.S.C. 610. Such comments should be
submitted separately and should cite DFARS Case 2003-D087.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the rule does
not impose any new information collection requirements that require the
approval of the Office of Management and Budget under 44 U.S.C. 3501,
et seq. Although the proposed clause requires contractors to maintain
(1) a current plan on file showing how the contractor would replace
employees who are unavailable for deployment or who need to be replaced
during deployment, and (2) a current list of all employees in the area
of operations in support of the military force, DoD believes that these
requirements are usual and customary and do not exceed what a
contractor would maintain in the normal course of business. DoD invites
comment on whether these requirements constitute an information
collection requirement that imposes a burden as defined at 5 CFR
1320.3(b).
List of Subjects in 48 CFR Parts 207, 212, 225, and 252
Government procurement.
Michele P. Peterson,
Executive Editor, Defense Acquisition Regulations Council.
Therefore, DoD proposes to amend 48 CFR Parts 207, 212, 225, and
252 as follows:
1. The authority citation for 48 CFR Parts 207, 212, 225, and 252
continues to read as follows:
Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.
PART 207--ACQUISITION PLANNING
2. Section 207.105 is amended by adding paragraph (b)(19)(E) to
read as follows:
207.105 Contents of written acquisition plans.
* * * * *
(b) * * *
(19) * * *
(E) Ensure that the requirements of DoD Instruction 3020.37,
Continuation of Essential DoD Contractor Services During Crises, are
addressed.
PART 212--ACQUISITION OF COMMERCIAL ITEMS
3. Section 212.301 is amended by adding paragraph (f)(vii) to read
as follows:
[[Page 13501]]
212.301 Solicitation provisions and contract clauses for the
acquisition of commercial items.
* * * * *
(f) * * *
(vii) Use the clause at 252.225-70XX, Contractors Accompanying a
Force Deployed for Contingency, Humanitarian, Peacekeeping, or Combat
Operations, as prescribed in 225.7402-2.
PART 225--FOREIGN ACQUISITION
4. Section 225.802-70 is revised to read as follows:
225.802-70 Contracts for performance outside the United States and
Canada.
Follow the procedures at PGI 225.802-70 when placing a contract
requiring performance outside the United States and Canada. Also see
Subpart 225.74, Defense Contractors Outside the United States.
5. Subpart 225.74 is revised to read as follows:
Subpart 225.74--Defense Contractors Outside the United States
Sec.
225.7401 General.
225.7402 Contractors accompanying a force deployed for contingency,
humanitarian, peacekeeping, or combat operations.
225.7402-1 Government support of contractor personnel accompanying a
force.
225.7402-2 Contract clause.
225.7403 Antiterrorism/force protection.
225.7403-1 General.
225.7403-2 Contract clause.
225.7401 General.
(a) If the acquisition requires performance of work in a foreign
country by U.S. personnel or a third country contractor, follow the
procedures at PGI 225.7401(a).
(b) For work performed in Germany, eligibility for logistics
support or base privileges of contractor employees is governed by U.S.-
German bilateral agreements. Follow the procedures in Army in Europe
Regulation 715-9, available at http://www.chrma.hqusareur.army.mil/docper.
225.7402 Contractors accompanying a force deployed for contingency,
humanitarian, peacekeeping, or combat operations.
225.7402-1 Government support of contractor personnel accompanying a
force.
(a) Contractors shall generally provide their own in-country
support for their personnel.
(b) If the use of Government-provided support is to be authorized
or required when the contractor is accompanying a force, the exact
support to be authorized or required shall be set forth in each
contract or in the operation order of the combatant commander. For
examples of such support, see PGI 225.7402-1(b).
225.7402-2 Contract clause.
Use the clause at 252.225-70XX, Contractors Accompanying a Force
Deployed for Contingency, Humanitarian, Peacekeeping, or Combat
Operations, in solicitation and contracts for services, construction,
or supplies, when contract performance requires that contractor
employees accompany, or be available to accompany, a force engaged in
contingency, humanitarian, peacekeeping, or combat operations outside
the United States.
225.7403 Antiterrorism/force protection.
225.7403-1 General.
Information and guidance pertaining to DoD antiterrorism/force
protection policy for contracts that require performance or travel
outside the United States can be obtained from the following offices:
(a) For Navy contracts: Naval Criminal Investigative Service
(NCIS), Code 24; telephone, DSN 228-9113 or commercial (202) 433-9113.
(b) For Army contracts: HQDA (DAMO-ODL)/ODCSOP; telephone, DSN 225-
8491 or commercial (703) 695-8491.
(c) For Marine Corps contracts: CMC Code POS-10; telephone, DSN
224-4177 or commercial (703) 614-4177.
(d) For Air Force contracts: HQ AFSFC/SFPA; telephone, DSN 945-
7035/36 or commercial (210) 925-7035/36.
(e) For Combatant Command contracts: The appropriate Antiterrorism
Force Protection Office at the Command Headquarters.
(f) For defense agency contracts: The appropriate agency security
office.
(g) For additional information: Assistant Secretary of Defense for
Special Operations and Low Intensity Conflict, ASD(SOLIC); telephone,
DSN 255-0044 or commercial (703) 695-0044.
225.7403-2 Contract clause.
Use the clause at 252.225-7043, Antiterrorism/Force Protection
Policy for Defense Contractors Outside the United States, in
solicitations and contracts that require performance or travel outside
the United States, except for contracts with--
(a) Foreign governments;
(b) Representatives of foreign governments; or
(c) Foreign corporations wholly owned by foreign governments.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
6. Section 252.225-70XX is added to read as follows:
252.225-70XX Contractors Accompanying a Force Deployed for
Contingency, Humanitarian, Peacekeeping, or Combat Operations.
As prescribed in 225.7402-2, use the following clause:
Contractors Accompanying a Force Deployed for Contingency,
Humanitarian, Peacekeeping, or Combat Operations (XXX 2004)
(a) Definitions. As used in this clause--
Combatant Commander is the commander of a unified or specified
combatant command established pursuant to 10 U.S.C. 161, or any
subordinate commander given authority by that Combatant Commander to
issue direction to contractors in a specified geographical area or
for a specific functional area.
Contingency operation means a military operation that--
(1) Is designated by the Secretary of Defense as an operation in
which members of the armed forces are or may become involved in
military actions, operations, or hostilities against an enemy of the
United States or against an opposing military force; or
(2) Results in the call or order to, or retention on, active
duty of members of the uniformed services under section 688,
12301(a), 12302, 12304, 12305, or 12406 of 10 U.S.C., chapter 15 of
10 U.S.C., or any other provision of law during a war or during a
national emergency declared by the President or Congress (10 U.S.C.
101(a)(13)).
Humanitarian or peacekeeping operation means a military
operation in support of the provision of humanitarian or foreign
disaster assistance or in support of a peacekeeping operation under
chapter VI or VII of the Charter of the United Nations. The term
does not include routine training, force rotation, or stationing (10
U.S.C. 2302(8) and 41 U.S.C. 259(d)).
(b) General. (1) Performance of this contract may require
deployment of contractor personnel in support of deployed military
forces involved in humanitarian, peacekeeping, contingency, or
combat operations.
(2) Contract performance in support of such forces is inherently
dangerous. The Contractor accepts the risks associated with required
contract performance in such operations.
(c) Support. (1) Unless specified elsewhere in the contract or
as provided in paragraph (c)(2) of this clause, the Contractor is
responsible for all support required for contractor personnel
engaged in this contract.
(2) The Government at its sole discretion may authorize or may
require the use of certain Government-provided logistical or in-
country support.
[[Page 13502]]
(d) Compliance with laws and regulations. The Contractor shall
comply with and ensure that its employees are familiar with and
comply with all--
(1) United States, host country, and local laws;
(2) Treaties and international agreements (e.g., Status of
Forces Agreements, Host Nation Support Agreements, and Defense
Technical Agreements);
(3) United States regulations, directives, instructions,
policies, and procedures that are applicable to the Contractor in
the area of operations;
(4) Orders, directives, and instructions issued by the Combatant
Commander relating to force protection, security, health, safety, or
relations and interaction with local nationals; and
(5) The Uniform Code of Military Justice where applicable.
(e) Contractor personnel. (1) The Contracting Officer may direct
the Contractor to remove and replace any contractor personnel who
jeopardize or interfere with mission accomplishment or who fail to
comply with or violate applicable requirements under this clause.
(2) The Contractor shall have a current plan on file showing how
the Contractor would replace employees who are unavailable for
deployment or who need to be replaced during deployment. The plan
shall identify all personnel who are subject to military
mobilization and shall detail how the position would be filled if
the individual were mobilized. In addition, the plan shall identify
all personnel who occupy a position that is designated as mission
essential by the Contracting Officer. This plan shall be available
for review by the Contracting Officer's representative.
(f) Personnel data. (1) The Contractor shall maintain with the
designated Government official a current list of all employees in
the area of operations in support of the military force. The
Contracting Officer will designate the Government official to
receive this data and the appropriate automated system(s) to use for
this effort.
(2) The Contractor shall ensure that all employees on this list
have at all times a current DD Form 93, Record of Emergency Data
Card, on file with both the Contractor and the designated Government
official.
(g) Pre-deployment requirements. The Contractor shall ensure
that the following requirements are met prior to deploying an
employee in support of deployed forces. Specific requirements for
each category may be set forth in the statement of work or contract
annex to the operation order. The Contractor shall ensure that--
(1) All applicable specified security and background checks are
completed;
(2) All deploying personnel are medically and physically fit to
endure the rigors of deployment in support of military operations
and have received all required vaccinations;
(3) Deploying personnel possess the required licenses to operate
all vehicles or equipment necessary to perform the contract in the
theater of operations;
(4) Deploying personnel have all necessary passports, visas, and
other documents required for contractor personnel to enter and exit
an area of operations; and
(5) Country and theater clearance is obtained for personnel.
(h) Military clothing and protective equipment. (1) Contractor
personnel accompanying the force are prohibited from wearing
military clothing unless specifically authorized by the Combatant
Commander. However, contractor personnel may wear specific items
required for safety and security such as ballistic or nuclear,
biological, or chemical protective clothing.
(2) The CONUS Replacement Center, or the theater commander, at
his discretion, may provide to the contractor personnel military-
unique organizational clothing and individual equipment (OCIE) and
training to ensure contractor personnel security and safety.
(3) In accordance with Government-Furnished Property clauses
specified elsewhere in this contract, the Contractor shall ensure
that all issued OCIE is returned to the point of issue.
(i) Weapons. (1) Contractor personnel may not possess privately
owned firearms when in support of deployed forces unless
specifically authorized by the Combatant Commander. The Contractor
shall ensure employee compliance with this requirement.
(2) If the Combatant Commander authorizes the carrying of
firearms, the military may issue weapons and ammunition to the
Contractor for issuance to specified contractor employees. The
Contractor shall ensure that its personnel who receive weapons are
adequately trained, are not barred from possession of a firearm by
18 U.S.C. 922(d)(9) or (g)(9), and adhere to all guidance and orders
issued by the Combatant Commander regarding possession, use, safety,
and accountability of weapons and ammunition. Upon redeployment or
revocation by the Combatant Commander of a contractor's
authorization to issue firearms, the Contractor shall ensure that
all Government-issued weapons and unexpended ammunition are returned
as directed by the Contracting Officer.
(j) Next of kin notification. The Contractor shall be
responsible for in-person notification of the employee designated
next of kin of a deployed employee in the following circumstances:
(1) Death of the employee.
(2) An injury to the employee requiring evacuation.
(3) The employee is missing.
(4) The employee is captured.
(k) Evacuation of bodies. In the event of the death of a
contractor employee, the Contractor is responsible for the
evacuation of body from the point of identification to the location
specified by the employee or next of kin, as applicable.
(l) Evacuation. If the Combatant Commander orders a mandatory
evacuation of some or all personnel, the Government will provide
assistance to the extent available to United States and third
country employees. In the event of a non-mandatory evacuation order,
the Contractor shall maintain personnel on location sufficient to
meet contractual obligations under this contract.
(m) Insurance. The Contractor is responsible for all issues
dealing with exclusions contained in an employee's personal
insurance policies that may be provided through its compensation
package as negotiated with that employee.
(n) Processing and departure points. The Contractor and its
employees will use a Government, contractor, or military unit
processing and point of departure and transportation mode as
directed by the Contracting Officer or the Contracting Officer's
representative.
(o) Purchase of scarce commodities. If the Combatant Commander
has established an organization for an area of operations whose
function is to determine that certain items are scarce commodities,
the Contractor shall obtain the approval of that organization prior
to procuring the item(s).
(p) Changes. (1) When the Contractor, in order to meet a
contractual obligation, must accompany or travel to an area where a
force is deployed for contingency, humanitarian, peacekeeping, or
combat operations, the Contractor shall comply with instructions of
the Combatant Commander relating to all transportation, logistical,
and support requirements.
(2) If there is a conflict between the instructions issued by
the Combatant Commander under paragraph (p)(1) of this clause and
the existing terms of the contract, the instructions issued by the
Combatant Commander take precedence over any existing terms.
(3) The Contractor may submit a request for equitable adjustment
for any additional effort required or any loss of contractor-owned
equipment occasioned by such direction.
(q) Changes in emergencies. (1) Normally, the Contracting
Officer or the Contracting Officer's representative provides
direction to the Contractor, and the Contractor provides direction
to its employees. However, when the Contractor is accompanying the
force outside the United States, if the Contracting Officer or the
Contracting Officer's representative is not available and emergency
action is required because of enemy or terrorist activity or natural
disaster that causes an immediate possibility of death or serious
injury to contractor personnel or military personnel, the ranking
military commander in the immediate area of operations may direct
the Contractor or contractor employee to undertake any action as
long as those actions do not require the contractor employee to
engage in armed conflict with an enemy force.
(2) The Contractor may submit a request for equitable adjustment
for any additional effort required or any loss of contractor-owned
equipment occasioned by such direction.
(r) Subcontracts. The Contractor shall incorporate the substance
of this clause, including this paragraph (r), in all subcontracts
that require subcontractor employees to accompany or to be available
to accompany a force engaged in contingency, humanitarian,
peacekeeping or combat operations outside the United States.
(End of clause)
252.225-7043 [Amended]
7. Section 252.225-7043 is amended in the introductory text by
removing
[[Page 13503]]
``225.7402'' and adding in its place ``225.7403-2''.
[FR Doc. 04-6236 Filed 3-22-04; 8:45 am]
BILLING CODE 5001-08-P