[Federal Register Volume 70, Number 86 (Thursday, May 5, 2005)]
[Rules and Regulations]
[Pages 23790-23803]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-9007]
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DEPARTMENT OF DEFENSE
48 CFR Parts 207, 212, 225, and 252
[DFARS Case 2003-D087]
Defense Federal Acquisition Regulation Supplement; Contractor
Personnel Supporting a Force Deployed Outside the United States
AGENCY: Department of Defense (DoD).
ACTION: Final rule.
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SUMMARY: DoD has issued a final rule amending the Defense Federal
Acquisition Regulation Supplement (DFARS) to address issues related to
contract performance outside the United States. The rule contains a
clause for use in contracts that require contractor personnel to deploy
with or otherwise provide support in the theater of operations to U.S.
military forces deployed outside the United States in contingency
operations, humanitarian or peacekeeping operations, or other military
operations or exercises designated by the combatant commander.
DATES: Effective Date: June 6, 2005.
FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, Defense Acquisition
Regulations Council, OUSD (AT&L) DPAP (DAR), IMD 3C132, 3062 Defense
Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0328;
facsimile (703) 602-0350. Please cite DFARS Case 2003-D087.
SUPPLEMENTARY INFORMATION:
A. Background
This final rule contains DFARS policy relating to contracts that
require contractor personnel to deploy with or otherwise provide
support in the theater of operations to U.S. military forces deployed
outside the United States in contingency operations, humanitarian or
peacekeeping operations, or military operations or exercises designated
by the combatant commander. In addition, as a result of the DFARS
Transformation
[[Page 23791]]
initiative, this rule moves text from DFARS 225.802-70 and 225.7401 to
the new DFARS companion resource, Procedures, Guidance, and Information
(PGI), available at http://www.acq.osd.mil/dpap/dars/pgi.
DoD published a proposed rule at 69 FR 13500 on March 23, 2004.
Twenty-six sources submitted comments on the proposed rule. This final
rule includes changes made as a result of public comments and as a
result of comments received from within DoD. In addition, the
paragraphs of the new clause have been re-ordered to provide a more
logical sequence. The following is a synopsis of DoD's response to the
public comments and the changes made to the rule.
1. Scope
a. Too broad.
Comment: Several respondents believe that the rule is too broadly
written and that it attempts to cover too many disparate situations.
One respondent states that the rule should distinguish between
``combat'' and ``peacekeeping or humanitarian'' operations. Another
respondent also considers that contingency, humanitarian, peacekeeping,
and combat operations are potentially greatly dissimilar.
DoD Response: Nonconcur. The clause language is written in such a
way as to allow for its use in a wide range of military operations.
b. Too narrow.
Comment: Several respondents thought that the rule was too narrow.
One respondent recommends that the clause cover defense contractors
working mission essential services within the United States. The
respondent suggests that the clause incorporate the requirements of
DoDI 3020.37, Continuation of Essential DoD Contractor Services During
Crises. Another respondent believes that the rule should cover
``nation-'' and ``infrastructure-'' building.
DoD Response: Out of scope/Concur in part. DoD considers the first
comment to be out of scope because most of the requirements of the
clause would be inapplicable in the United States. Creation of a new
clause to implement DoDI 3020.37 as it applies to crises within the
United States is not within the scope of this case. With regard to the
second respondent, flexibility has been added to the scope by including
other military operations or exercises designated by the combatant
commander.
c. Further revision.
DoD has carefully considered how to accurately express the scope of
this case and has developed the following scope statement at 225.7402-
1:
``This section applies to contracts requiring contractor personnel
to deploy with or otherwise provide support in the theater of
operations to U.S. military forces deployed outside the United States
in--
(a) Contingency operations;
(b) Humanitarian or peacekeeping operations; or
(c) Other military operations or exercises designated by the
combatant commander.''
The new clause is intended to apply not only to contractor
personnel that ``accompany'' or ``deploy'' with the U.S. forces, but to
also cover ``support in the theater of operations.'' On the other hand,
it does not apply to contractor personnel providing support from
outside the theater of operations or to nation-building efforts such as
the reconstruction of Iraq. The term ``combat operations'' was removed,
as it is an undefined term, and ``other military operations or
exercises designated by the combatant commander'' was added to increase
flexibility. Application of this scope has caused revisions throughout
the rule, particularly in the title of the clause, the clause
prescription at 225.7402-4(a), and paragraphs (b) and (q) (as
redesignated in the final rule) of the clause (applicability and
subcontract flowdown).
2. Applicability to Other Nationals
Comment: One respondent comments that some of the requirements of
the proposed DFARS clause appear not to apply to either host country
contractor personnel or third country national contractor personnel.
DoD Response: Concur in part. DoD agrees that some requirements do
not apply to host country contractor personnel or third country
national contractor personnel. However, DoD considers that, in most
cases, the clause is already drafted in such a manner that it
specifies, when necessary, any limitations in the application to host
country contractor personnel and third country national contractor
personnel. With regard to compliance with laws and regulations, DoD has
added the word ``applicable.'' Thus, if a U.S. law is not applicable to
host country contractor personnel or third country national contractor
personnel, compliance is not required. The paragraphs on pre-deployment
and processing and departure point clearly apply only to those
employees who are deploying from the United States. The paragraph on
evacuation is already focused on employees from the United States and
third country national contractor personnel. All the other cited
paragraphs would apply equally to United States contractor personnel,
host country contractor personnel, and third country national
contractor personnel.
3. Equitable Adjustment
Comment: Many respondents brought up the potential need for
equitable adjustment due to the perceived risks to contractors in the
situations covered by this clause.
DoD Response: The need for equitable adjustment has been addressed
in the following specific areas where the respondents raised the issue:
government support, compliance with orders of the combatant commander,
contractor personnel, insurance, scarce commodities, and changes.
4. Need FAR Coverage
Comment: One respondent suggests that this clause would be
beneficial to the civilian side of the Federal Government (GSA, NIH,
DOI, etc.) who execute contracts for contractor support to accompany
the forces. It would also be beneficial to the Department of State and
the U.S. Agency for International Development, who deploy into
contingency or humanitarian operations. Therefore, the respondent
suggests either including authorization for other Federal agencies
procuring on behalf of DoD or other deployed federal agencies to
utilize the clause, or including it in the FAR.
DoD Response: Concur in part. We have no objection to any agency
using this clause, but it would be up to that agency to make the
decision. There is no prohibition against an agency adopting the clause
of another agency. It may also be a good idea to eventually include a
similar clause in the FAR but, because DoD has an urgent need for the
clause, implementation is limited to the DFARS at this time.
5. Fewer Contractor Personnel Should Accompany Deployed Forces
Comment: One respondent states that contractor support in theaters
of war should be limited to specialties that the military cannot or
does not have within its personnel inventory, such as technical support
for systems. Several respondents want to leave military operations to
military personnel, and recruit more soldiers, if necessary.
DoD Response: Out of scope. The purpose of this DFARS change is to
provide a clause to regulate contractor personnel supporting a deployed
force, not to determine the policy on which contractors should do so.
[[Page 23792]]
6. Need for a List of Other Clauses That Should Be Used With This
Clause
Comment: One respondent recommends revising the proposed rule to
ensure that other FAR and DFARS clauses that address performance
overseas are indicated as mandatory clauses, where applicable.
DoD Response: Concur in part. DoD has included at DFARS 225.7402-
4(b) a reference to guidance in PGI on clauses to consider when using
the new clause at DFARS 252.225-7040.
7. Contents of Written Acquisition Plans
Comment: One respondent suggests the rule explain ``how'' to
implement DoDI 3020.37, Continuation of Essential DoD Contractor
Services During Crises. The respondent stated that commanders and
contracting officers must attend to these questions during acquisition
planning.
DoD Response: Concur. A reference to PGI guidance on acquisition
planning for crisis situations outside the United States has been added
at DFARS 207.105(b)(19)(E).
8. Solicitation Provisions and Contract Clauses for the Acquisition of
Commercial Items
Comment: One respondent suggests that the final rule add to DFARS
212.301 the authority to use the clause at DFARS 252.225-7043,
Antiterrorism/Force Protection Policy for Defense Contractors Outside
the United States, in commercial item contracts awarded under FAR Part
12.
DoD Response: Concur. DoD has revised DFARS 212.301 to prescribe
use of the clause at DFARS 252.225-7043, Antiterrorism/Force Protection
Policy for Defense Contractors Outside the United States, in commercial
item contracts that include the clause at DFARS 252.225-7040. Although
the intent of FAR Part 12 is to keep contract requirements that are not
standard commercial practices to a minimum, authorizing inclusion of
this clause in commercial contracts when contractor personnel are
providing support in the theater of operations will minimize the risk
to personnel safety and the organization and, at the same time, make
completion of contract performance more efficient and effective. This
is important in contracts for acquisitions in high risk situations,
whether the items are commercial or noncommercial.
9. Defense Contractors Outside the United States--General
Comment: One respondent questions why the rule only specifically
addresses Germany. Several respondents request specific reference to
bilateral agreements with Japan and Korea and policies that have
application to contractor employees.
DoD Response: Concur. DoD has added 225.7401(c), with a reference
to PGI 225.7401(c) for work performed in Japan or Korea.
10. Definitions (252.225-70XX(a)) (252.225-7040(a))
a. ``Combatant commander.''
Comment: Several respondents discuss the use of the term
``combatant commander,'' which was defined in the proposed rule to
include subordinate commanders given authority by the combatant
commander to issue direction to contractors in a specified geographical
area or for a specific functional area.
DoD Response: Concur in part. Subordinate commanders have been
removed from the definition of ``combatant commander.'' It is still
possible for the combatant commander to delegate authority to a
subordinate commander. According to FAR 1.108(b), each authority in the
FAR (or DFARS) is delegable unless specifically stated otherwise.
Furthermore, paragraph (p) of the clause in the proposed rule has been
substantially modified, and paragraph (q) of the clause in the proposed
rule has been deleted, which will remove the conflicts regarding
contractors receiving direction from unidentified subordinate
commanders.
b. ``Combat operations.''
Comment: One respondent observes that in the prescription the term
``combat operations'' is used but no definition is provided.
DoD Response: Concur. ``Combat operations'' is not a defined term
in the DoD Dictionary of Military and Associated Terms, and has been
deleted from the final rule.
c. ``Contractors accompanying the force.''
Comment: Several respondents request the definition for
``accompanying a force.'' One respondent questions whether it is
applicable strictly to contractors accompanying a force on the move or
whether it also covers contractors situated in an area where military
forces are deployed.
DoD Response: The term ``accompanying the force'' is no longer
used. The phrase ``deploy with or otherwise provide support in the
theater of operations'' should answer the issues raised by the
respondents. It applies to contractor personnel situated in an area
where military forces are deployed, and to some extent, contractor
personnel in-transit, although some provisions would be applicable only
in the theater of operations. DoD uses the term ``in the theater of
operations'' rather than ``in country'' as the theater of operations
may not be restricted to a single country.
d. Further revision.
DoD has not included definitions for ``contingency operation'' and
``humanitarian or peacekeeping operation'' in the clause as they are
now automatically incorporated from FAR Part 2 by the new clause at FAR
52.202-1, Definitions (July 2004).
11. Shifts Risk to Contractors (252.225-70XX(b)) (252.225-7040(b))
Comment: Several respondents comment that the proposed rule
appeared to shift too much risk to contractors. One respondent comments
that the use of the term ``inherently dangerous'' in paragraph (b) of
the clause could jeopardize a contractor's ability to obtain insurance
coverage under the Defense Base Act and other provisions.
DoD Response: Concur in part. The term ``inherently dangerous''
overstates the intent of the rule. There was no intent to change the
law or to affect coverage under the Defense Base Act, the War Hazards
Compensation Act, or any other provision of law or regulation.
Paragraph (b)(2) of the clause has been changed to state that contract
performance in support of military forces may require work in dangerous
or austere conditions. If an independent contractor volunteers or
agrees to perform work in such a setting, the contractor must assume
responsibility to supervise its employees and to train and prepare them
to behave in as safe a mode as possible. Contractors must not directly
participate in hostilities against an armed enemy. The risk associated
with inherently Governmental functions will remain with the Government.
Contractors should resolve concerns about a specific contract during
pre-award negotiations.
12. Government Support
a. Government-provided support should be set forth in contract.
Comment: Several respondents comment that a contractor would not be
able to ascertain what is in an individual operation order.
DoD Response: Concur. The language stating ``or in the operation
order of the combatant commander'' has been removed.
Comment: Several respondents have concern about the effect of
paragraph (c)(2) of the clause in the proposed rule. They believe that
the Government should be required to specify in the
[[Page 23793]]
solicitation and resulting contract the types of Government-provided
support, if any, that will be required or authorized.
DoD Response: Concur in part. DoD concurs that Government-provided
support should be specified in the contract. Paragraph (c)(2) of the
clause has been deleted.
b. Changes in available support.
Comment: One respondent expresses concern relative to any deficit
(or unanticipated availability) that might arise between support
authorized in a contract and actual support available in a particular
theater. A second respondent notes that the combatant commander would
make the ultimate decision on providing resources to a contractor
regardless of what is in the contract. Another respondent recommends
adoption of additional language that will provide a mechanism for
handling delays or non-delivery of promised Government-provided support
similar to that utilized in the Government property clauses. The
respondent also recommends the adoption of language substantially
similar to that in the FAR Government property clauses that would
provide for equitable adjustment in the case of late or non-delivery of
promised support on commercial contracts under FAR Part 12, since such
contracts do not normally contain a Government property clause.
DoD Response: Concur in part. The rule should address potential
differences between Government-provided support anticipated at time of
contract/task/option award and actual support made available in the
theater of operations. Changes will be handled as specified in the
Changes clause of the contract, which will also cover changes in
Government-furnished facilities, equipment, material, services, or
site, as specified in paragraph (p) of the clause at 252.225-7040 in
the final rule. DoD does not concur with the recommendation to outline
the scope of any adjustment necessitated by changes in Government
support, since there is no intent to modify the already-existing
procedures inherent in any changes clause.
c. Lack of sufficient detail defining variety of support functions.
Comment: Several respondents believe that the subject provision is
lacking in sufficient detail on defining a variety of support
functions.
DoD Response: Partially concur. The final rule now implements DoD
policy that the combatant commander will develop a security plan to
provide protection, through military means, of contractor personnel
engaged in the theater of operations unless the terms of the contract
place the responsibility with another party. In addition, the clause
states that all contractor personnel engaged in the theater of
operations are authorized resuscitative care, stabilization,
hospitalization at level III military treatment facilities, and
assistance with patient movement in emergencies where loss of life,
limb, or eyesight could occur. Hospitalization will be limited to
stabilization and short-term medical treatment, with an emphasis on
return to duty or placement in the patient movement system. However,
the contractor is responsible for ensuring that the Government is
reimbursed for any costs associated with such treatment or
transportation.
The remaining language is deliberately non-specific in outlining
available Government support, since that can only be ascertained after
consultation with the relevant combatant command and service
components. The general types of support that should be considered are
outlined in the corresponding PGI coverage. Once adequate research
regarding availability of Government support is accomplished, the
contracting officer can then provide for such support in the resulting
contract.
d. Difficulty in ascertaining available support.
Comment: Several respondents suggest that DoD inform users how to
obtain the information necessary to specify support in a contract. This
will require a high degree of coordination between a contracting
officer and military organizations that would be responsible for
providing resources in an area of operations.
DoD Response: Partially concur. The new PGI guidance on acquisition
planning specifies that the requiring activity is responsible for
obtaining pertinent operation plans, operation orders, and annexes from
the affected combatant command or military service element, so that the
contract will be consistent.
e. Support should be commensurate with military personnel.
Comment: One respondent expresses concern that companies in many
cases do not, and cannot, provide in-country support for deployed
employees. They note that contractor personnel have received, and
should receive, support commensurate with the uniformed members with
whom they serve.
DoD Response: Nonconcur. The Government will only provide support
services that are available in the theater of operations concerned. To
the extent that such support is identifiable and known at time of
solicitation and award, it can be specified in the solicitation and
resulting contract. However, where unavailable from Government sources,
such support can only be provided by the contractor. Any contractor can
base its decision to submit a proposal on its own assessment of ability
to provide and price personnel support.
f. Contracting officer must communicate support requirements to
combatant commander.
Comment: One respondent presumes that the contracting officer would
have to communicate the support requirements to the combatant commander
for incorporation into an operation order.
DoD Response: Nonconcur. The contracting officer can only provide
for Government resources that are available to a combatant commander.
The language referring to support outlined in operation orders has been
deleted in response to another comment to avoid contractor confusion.
g. Which military organization will provide the support?
Comment: One respondent recommends adding a requirement for the
contracting officer to specify in the contract or task order the
military organizations that will provide support to a contractor, with
further description in PGI.
DoD Response: Nonconcur. It is unlikely that the annexes will be
specific in describing the individual military organizations that would
provide any contractor with support in defined areas. Hence, the
suggested additional language would be unworkable, particularly when
specifying Government-provided resources too far in advance of an
actual deployment.
h. Effect on Defense Base Act.
Comment: One respondent argues that the requirement for contractors
to generally provide their own in-theater support would make it even
more difficult for contractors to obtain Defense Base Act coverage.
DoD Response: The DAR Council believes that the type of support the
respondent is concerned about is force protection. It is DoD policy
that the combatant commander will develop a security plan to provide
protection through military means unless valid contract terms, approved
by the combatant commander, place the responsibility with another
party. DoD has modified 225.7402-3(a) and paragraph (c) of the clause
at 252.225-7040 to state this policy and to emphasize the fact that the
Government may provide the other types of support listed in PGI
225.7402-3(a) and that such support to be provided will be
[[Page 23794]]
specified in the contract. Also see the responses at paragraph 12.c and
the responses regarding insurance issues in paragraph 22.
i. Force protection.
Comment: One respondent expresses concern that the rule permits
contractors to hire other contractors who, in turn, will hire armies of
mercenaries (frequently local mercenaries) to provide force protection.
The respondent foresees that such mercenaries will attempt control of
the protection market, may be likely to put intelligence information at
risk, and will contribute to ``power politics'' in the particular
theater.
DoD Response: Nonconcur. As stated in the previous paragraph, it is
DoD policy to provide force protection to contractor employees
providing support in the theater of operations to U.S. military forces
unless valid contract terms, approved by the combatant commander, place
that responsibility with another party. Even though in some instances
contractors may be required to hire security and force protection, this
does not equate to ``armies of mercenaries.'' Every contractor will be
required to adhere to laws and regulations of the United States, the
host country, and third country laws, as well as orders, directives,
and instructions issued by the combatant commander relating to various
topics, including force protection. This requirement effectively
permits Government control over and minimization of the types of
excesses foreseen by this respondent.
13. Compliance With Laws and Regulations
a. Inaccessibility of information on applicable laws and
regulations.
Comment: Some respondents consider paragraph (d) of the clause to
be an unreasonable requirement because there is no reliable and
accessible source of information for contractors regarding all of the
laws (particularly host country and local laws) that may be applicable
to a contractor supporting a contingency or humanitarian effort. A
contractor may be asked to deploy to countries or areas of the world on
short notice without extended advance notice and without meaningful
access to information on relevant foreign and local laws. Contractors
are often denied access to the very information that would be required
to comply with this requirement because it is classified. One
respondent wants the Government to notify contractors in writing of all
the requirements with which the contractors are expected to comply,
other than laws and international treaties. The respondents are
concerned that internal Government policies, procedures, and directives
and instructions would not always be communicated by the Government to
the contractor.
DoD Response: Generally nonconcur. Paragraph (d) of the clause is a
reminder of the existing obligation for contractor personnel to comply
with the laws and regulations applicable to a contract. Contractors
have access to all of these laws and regulations and are bound to
comply with them. For example, analysis of the host country law is an
existing aspect of acquisition planning under FAR Part 7. Country
studies are available online at http://www.state.gov. Such available
online resources indicate that a contractor may independently ascertain
the laws and regulations necessary to comply with paragraph (d) of the
clause. A single resource for the laws and regulations enumerated in
paragraph (d) would be convenient to the contractor, but it would need
to be specific to each contract, it could easily inadvertently omit an
applicable law or regulation, and is in large part redundant to
available resources. However, DoD concurs that it needs to make
organizational improvements to improve the accessibility of contractors
to nonclassified portions of classified documents and orders of the
combatant commanders.
b. Conflicting requirements.
Comment: One respondent is concerned that it may be impossible to
comply with every applicable law, treaty, agreement, regulation,
directive, and instruction simultaneously because they are inconsistent
and contain conflicting provisions.
DoD Response: Nonconcur. Again, paragraph (d) of the clause is a
reminder of the existing obligation. Regardless of paragraph (d), it is
incumbent upon the contractor to make the best possible judgment in
deciding which law or regulation takes precedence in the case of
conflict.
c. Employees do not need to know.
Comment: One respondent notes that, while there may be a reason for
a contractor to have a basic understanding of the special laws and
policies related to performance of a contingency contract, there is
little need for all employees to have such comprehensive knowledge.
DoD Response: Concur in part. The contractor personnel need to have
sufficient knowledge of the laws and regulations that are applicable to
them, to avoid violating them in a foreign country. DoD has added a
qualifying phrase to focus the applicability to personnel ``supporting
a force deployed outside the United States as specified in paragraph
(b)(1)'' of the clause.
d. The contractor cannot verify compliance by individual employees.
Comment: One respondent comments that private business has no
ability to verify compliance with local law when its individual
employees are assigned to classified locations.
DoD Response: Nonconcur. The contractor is still responsible for
its employees.
e. Paragraph (d)(2) of the clause, Treaties and international
agreements (e.g., Status of Forces Agreements, Host Nation Support
Agreement, and Defense Technical Agreements).
Comment: The Geneva and Hague Conventions should be added to the
parenthetical.
DoD Response: Nonconcur. The treaties and international agreements
that are listed are some examples, not an exhaustive list. The problem
with examples is that they are not all inclusive, but are often
misinterpreted (i.e., if it is not listed, it doesn't apply).
Therefore, DoD has deleted the examples.
f. Paragraph (d)(4) of the clause, Orders, directives, and
instructions issued by the Combatant Commander relating to force
protection, security, health, safety, or relations and interaction with
local nationals.
Comment: One respondent states that the mandate in paragraph (d)(4)
that contractors comply with the ``orders, directives, and instructions
issued by the Combatant Commander'' puts the Commander in a position of
directing contract performance without actual contracting authority.
Another respondent suggests that a new subparagraph be added to read as
follows: ``The Government Contracting Officer or the Combatant
Commander is responsible for communicating to the Contractor any
applicable instructions, orders, directives, etc. to the Contractor and
Contractor's personnel. To the extent that compliance requirements
change after contract award, the contractor shall be entitled to an
equitable adjustment for any increased costs associated with those
costs.''
DoD Response: Nonconcur. The combatant commander acts in a position
of sovereign authority for issues relating to force protection,
security, health, and safety. If a contractor were driving a vehicle on
a street in the United States and a fire marshal directed the
contractor to take a detour because of a fire, the contractor would be
required to obey that order. The combatant commander has the authority
to serve as the single point of contact for such areas in the theater
of operations, since the
[[Page 23795]]
combatant commander is in the best position to anticipate the needs of
the force and how it will operate in the field. Any claim to equitable
adjustment as the result of a change in the orders, directions, or
instructions of the combatant commander will be handled in accordance
with the terms of the contract.
g. Paragraph (d)(5) of the clause, Applicability of the Uniform
Code of Military Justice (UCMJ).
Comment: Some respondents request more specific delineation of the
applicability of the UCMJ. One respondent comments that paragraph
(d)(5) should be deleted because the UCMJ will never, as a practical
matter, be applicable under the clause because contractor employees are
not subject to the UCMJ except during a declared war.
DoD Response: Concur. Paragraph (d)(5) has been deleted in its
entirety. To the extent that it is applicable, it is covered by
paragraph (d)(1) of the clause.
14. Contractor Personnel (252.225-70XX(e)) (252.225-7040(h))
a. Role of the combatant commander.
Comment: One respondent recommends that paragraph (1) should
reference paragraphs (p) and (q) because combatant commanders can also
take action to remove contractor personnel without the involvement of
the contracting officer.
DoD Response: Paragraph (p) has been substantially modified and
paragraph (q) of the clause has been deleted. (See paragraph 25 of this
section.)
b. Notification to contractor.
Comment: One respondent recommends rewording paragraph (e)(1) of
the clause to require notification and an opportunity to resolve the
matter with the contracting officer.
DoD Response: Nonconcur. Contracting officers must have the ability
to summarily direct the removal of personnel perceived as jeopardizing
or interfering with the mission. It is reasonable to assume that, prior
to directing removal, the contracting officer would have already made
efforts to resolve the matter with the contractor.
c. Reasonable opportunity to replace/equitable adjustment.
Comment: Several respondents recommend that contractors be given a
reasonable opportunity to replace any personnel removed from the force
and be given an equitable adjustment for any additional expenses that
may be compensable under the contract.
DoD Response: Nonconcur. Contractors, in accordance with
requirements of the contract, must have a plan for immediate
replacement of employees removed from the theater of operations.
Contractors must replace and, where applicable, repatriate any
contractor personnel at its own expense.
Further revision: DoD has revised paragraph (e)(1) of the clause
(redesignated as paragraph (h)(1) in the final rule) as follows: ``(1)
The Contracting Officer may direct the Contractor, at its own expense,
to remove and replace any contractor personnel who jeopardize or
interfere with mission accomplishment or who fail to comply with or
violate applicable requirements of this clause. Such action may be
taken at the Government's discretion without prejudice to its rights
under any other provision of this contract, including the Termination
for Default clause.'' This language was adopted from the Army interim
rule (48 CFR 5152.225-74-9000, Contractors Accompanying the Force, 68
FR 66740, November 28, 2003).
d. Provide the plan to the contracting officer.
Comment: One respondent recommends revising the last sentence of
paragraph (e)(2) of the clause to read: ``This plan shall be provided
to the Contracting Officer upon request and shall be made available for
review by the Contracting Officer's Representative.''
DoD Response: Partially concur. DoD concurs that the plan should be
made available to the contracting officer upon request. Since the FAR
defines ``contracting officer'' to include authorized representatives
of the contracting officer when acting within the limits of their
authority as delegated by the contracting officer, the phrase ``shall
be made available for review by the Contracting Officer's
Representative'' has been deleted from the clause.
e. Data item description for the plan.
Comment: One respondent recommends that the Government provide a
data item description for the desired unavailable employee replacement
plan and list the plan on the contract data requirements list.
DoD Response: Nonconcur. It is not necessary to establish a data
item description in order to request that the contractor have a plan
for replacing employees. This allows the contractor more flexibility in
determining the format and content of the plan.
f. Further revision. DoD has also added a requirement to keep the
plan current.
15. Personnel Data (252.225-70XX(f)) (252.225-7040(g))
a. ``Theater of operations'' not defined.
Comment: One respondent believes ``theater of operations'' (not the
term used in the proposed rule) is not a specifically defined term and
could create confusion as to which employees are in a given geographic
location supporting specific activities. The respondent recommends
revising paragraph (1) to require the contractor to maintain
information on all employees deployed into a theater of operation as
defined by the contracting officer for each covered contingency
operation.
DoD Response: Concur in part. A definition of ``theater of
operations'' has been added in paragraph (a) of the clause. In
accordance with the scope of this case, DoD has substituted the
following language: ``current list of all contractor personnel that
deploy with, or otherwise provide support in the theater of operations
to the U.S. military forces as specified in paragraph (b)(1) of this
clause.''
b. Cost of performance.
Comment: Several respondents express concern over the time and
expense for contractors to prepare and maintain the information.
DoD Response: Nonconcur. As the system is currently envisioned,
this requirement is incidental to contract performance and it is not
expected to place an unreasonable cost burden on the contractors. It
would appear to be a normal prudent business practice to be able to
identify which employees are working in high risk areas.
c. Specifically priced contract deliverable.
Comment: One respondent recommends making the contractual
obligation to maintain and/or provide the data a specifically priced
contract deliverable.
DoD Response: Nonconcur. Contractors should consider the work
involved and price their proposal accordingly. As the system is
currently envisioned, this requirement is incidental to contract
performance and it is not expected to place an unreasonable cost burden
on the contractors.
16. Pre-deployment Requirements (252.225-70XX(g)) (252.225-7040(e) and
(k))
a. Information from operation plans and operation orders may not be
available to contractor.
Comment: Several respondents suggest deleting the verbiage about
``contract annex to the operation order''
[[Page 23796]]
and including requirements from the operation order in the contract.
One respondent further recommends that the clause language require
compliance ``to the best of the contractor's knowledge.''
DoD Response: Concur in part. DoD has deleted ``contract annex to
the operation order'' from the clause. It is the responsibility of the
requiring activity to ensure that specific operational requirements are
deciphered, and the contracting officer must incorporate them into the
contract. DoD does not agree that the clause language should be changed
to require compliance ``to the best of the contractor's knowledge,'' as
language of this nature would be unenforceable. Specific requirements
of each element of this clause paragraph will be sufficiently spelled
out so contractors know exactly what is required.
b. Specific number of employees.
Comment: Several respondents believe that this clause should be
revised to refer to a specific number of employees a contractor can
provide to meet desired qualifications, to permit advance negotiations
between contractors and customers to avoid lag times once operations
begin.
DoD Response: Nonconcur. This clause puts contractors on notice
that they may need to deploy and, therefore, they need to ensure they
have qualified or qualifiable personnel to meet contract requirements.
c. Security and background checks (para. (1)).
Comment: One respondent notes that the Government must specify
security requirements on the DD Form 254, Access to National Security
Information, if the contractor and its employees may be required to
have access to certain national security information. Another
respondent recommends deleting ``All applicable specified'' and
replacing it with ``Applicable.'' A respondent also recommends adding
``and acceptable'' at the end of the paragraph to ensure security and
background checks were accomplished and are acceptable.
DoD Response: Concur in part. A DD Form 254 is used when a
contractor will require access to or will generate classified
information, so it may or may not be applicable in a contract.
Background checks may also be required and, if so, should be specified
in the contract. DoD has changed ``All applicable specified'' to ``All
required'' and ``and acceptable'' has been added at the end.
d. Medical requirements (para. (2)).
Comment: Several comments were received regarding the fact that no
specific minimum medical standards were included in the clause; thus,
contractors do not know what constitutes ``medically and physically
fit.'' Specific readiness requirements and required vaccinations must
be set forth in the contract. An appeal procedure should be included to
preclude forcing contractors to submit to potentially hazardous,
experimental, or untested vaccinations. DoD should provide any vaccines
that are only available to federal providers. This requirement has the
potential to significantly increase cost of performance to establish
and maintain a system concerning health and level of physical readiness
for contractor employees. Another respondent is concerned that
contractors are dependent upon the Government to provide certain
vaccines because only the Government has access to those vaccines.
DoD Response: Concur in part. The clause has been revised to state
that contractor personnel must meet the minimum medical screening
requirements as set forth in the contract. The Government will provide
contractors with theater-specific medical supplies or medications.
The term ``vaccinations'' has been changed to ``immunizations'' to
be consistent with terminology in DoD policy. The Combatant Command
Surgeon establishes immunization requirements for the area of
operations and maintains a listing of them. The immunization listing
will also need to be incorporated in contracts. DoD does not agree with
establishment of appeal procedures for immunizations for contractors.
If contractor personnel are not willing to receive the required
immunizations, the contractor will be required to provide other
personnel who are willing to meet the contractual requirements.
e. Vehicle or equipment licenses (para. (3)).
Comment: One respondent recommends adding ``United States'' before
``licenses'' to clarify that there is no obligation for contractors to
search out or comply with any foreign requirements to operate vehicles
or equipment.
DoD Response: Nonconcur. Although contractor personnel may not be
able to obtain foreign licenses prior to deployment, contractors may be
required to obtain foreign licenses at the deployed location. Paragraph
(3) has been relocated from pre-deployment requirements to a separate
paragraph (k).
Comment: Another respondent states that the clause should address
ownership of vehicles and equipment necessary to perform the contract
in the theater of operations and requests that the contractor and its
employees not be held liable for damages, of any kind, resulting from
the operation of Government owned or leased equipment, and shall be
indemnified and held harmless against all losses, costs, claims, causes
of action, damages, liabilities, and expenses arising directly or
indirectly from any act or omission relating to the operation of such
equipment by contractor or contractor's employees, agents,
subcontractors, or suppliers.
DoD Response: Nonconcur. Generally, contractors are required to
provide their own vehicles and equipment to meet the terms of their
contract. Vehicle requirements should be specified elsewhere in the
contract and any contract that provides government furnished equipment
(GFE) will include a GFE clause in the contract to cover liability for
damages. This paragraph only covers required licenses to operate
vehicles and equipment.
f. Visas.
Comment: One respondent does not believe it is in the best interest
of the United States to impose a requirement that a contractor obtain a
foreign Government's approval through entrance or exit visas before
implementing a U.S. Government contract.
DoD Response: Nonconcur. Contractors must coordinate through the
State Department and ensure their personnel meet all requirements for
entering and exiting the deployed location. The mere fact that a
contractor has a contract with the U.S. Government does not absolve the
contractor from meeting foreign entry and exit requirements.
g. Geneva Conventions identification card.
Comment: One respondent recommends issuing Geneva Conventions
identification cards to contractor employees.
DoD Response: Concur. The clause has been revised to clarify that
deploying contractor personnel should receive a Geneva Conventions
identification card from the deployment center.
h. Country and theater clearance (para. (5)).
Comment: Several respondents comment that the clause should specify
what country and theater clearances are required and where to obtain
them.
DoD Response: Concur. The clause has been revised to cite DoD
Directive 4500.54, Official Temporary Duty Abroad, and DoD 4500.54-G,
DoD Foreign Clearance Guide.
[[Page 23797]]
17. Military clothing and equipment (252.225-70XX(h)) (52.225-7040(i))
a. Authorization to wear military clothing (para (1)).
Comment: One respondent commented that ``specifically authorized by
the Combatant Commander'' should be changed to ``required by the
Combatant Commander.'' They recommended changing ``military clothing''
to ``military uniforms'' and they believe wearing of military uniforms
by contractor personnel should require consent of the contractor.
DoD Response: Nonconcur. The combatant commander does not require
the wearing of military clothing but may authorize, in writing, certain
contractor personnel to wear standard military clothing for operational
reasons on a case-by-case basis. ``Uniforms'' implies military uniforms
with appropriate rank, decorations, etc., which are only authorized for
uniformed military personnel. Clothing denotes uniform items worn
without specific military insignia.
b. Need for distinctive insignia.
Comment: If contractor personnel are authorized by the combatant
commander to wear military clothing (and are not carrying firearms),
they should be required to wear distinctive civilian insignia to keep
non-combatant civilian status clear under the Geneva Conventions.
DoD Response: Concur. DoD has added to the clause language
pertaining to distinctive insignia.
c. Organizational clothing and equipment.
Comment: Change ``specific items'' to ``military-unique
organizational clothing and individual equipment (OCIE).'' The
Government should inform the contractor of necessary clothing and
protective equipment and provide OCIE to the contractor when such
equipment is only available from the Government.
DoD Response: Concur. Use of term OCIE instead of ``specific
items'' adds clarification and consistency. The clause, as written,
already provides for Government issuance of military-unique OCIE.
Necessary clothing and protective equipment should be spelled out
elsewhere in the contract.
d. Return of OCIE.
Comment: Several respondents recommend changing the clause to allow
the return of OCIE to places other than the original point of issue, as
directed by the contracting officer or contracting officer's
representative (COR). Another respondent states that contracting
officers are geographically separated from the place of performance and
do not have visibility over equipment issued to contractor employees in
the theater. This respondent recommends adding language to make
contractors directly responsible to the issuing organization for
equipment that needs to be returned.
DoD Response: Concur in part. Concur with changing the language to
allow the return of OCIE to places other than the original point of
issue, as directed by the contracting officer, to provide for
flexibility at the deployed location. Concur in theory with the
recommendation to have contractors directly responsible to the issuing
organization. However, the COR is usually in the theater of operations
and would have visibility over equipment that is issued in the theater
of operations. The COR can direct the contractor to return the
equipment to the desired location if given the authority to do so. The
language ``In accordance with Government-Furnished Property clauses
specified elsewhere in this contract'' is redundant and unnecessary so
it has been deleted.
18. Weapons (252.225-70XX(i)) (252.225-7040(j))
a. Contractor personnel must be able to protect themselves.
Comment: Many respondents feel strongly that contractor personnel
must be able to protect themselves in dangerous situations and seem to
think that the proposed rule bans contractors from carrying weapons.
There are fears that commanders could easily depend upon contractor
labor, transportation of heavy equipment, or civil engineering
services, but will not be manned to a level necessary to protect them.
DoD Response: Partially nonconcur. The clause does not require
contractors to be unarmed in all cases. The clause states that the
combatant commander will make a determination whether contractors can
be armed, and the type of arms allowed, in any particular situation.
The clause allows the combatant commander, who is responsible for
military control in the region, to determine on a case-by-case basis
whether arms are necessary.
b. Privately owned weapons.
Comment: Several respondents object that allowing contractors to
carry privately owned weapons is a major policy shift and should not be
allowed. Authorizing private firearms carries a great risk of a
political/military occurrence that can negatively impact the overall
mission and national security and is not outweighed by the benefit of
private firearms, since there is authority for military issuance
already. Several respondents believe that employee- or other privately-
owned firearms should be prohibited in all cases, but wants a
distinction made between ``Government-furnished firearms'' and
``contractor-provided'' firearms.
DoD Response: Concur in part. The language specifically allowing
the combatant commander to authorize the carrying of privately-owned
weapons has been deleted from the clause. However, as the DoD policy is
not yet established, the clause leaves the decision to the combatant
commander, to be made in conformity with treaties, laws, regulations,
and policies that are in effect at the time of the decision.
c. Status as noncombatant civilians.
Comment: Several respondents are concerned that contractor
personnel should not be armed except in extremely limited circumstances
when necessary for self-defense. The Government actions of arming the
contractor under certain circumstances places the contractor at risk of
forfeiting their status as noncombatant civilians, subjecting a
contractor captured by the enemy to be deemed an unlawful combatant or
a mercenary, thereby losing POW status and treatment. If contractor
employees are armed, the respondent recommends that the Government
provide training to contractor personnel regarding when the weapons can
be used, not just how to use them.
DoD Response: Concur in part. DoD understands the potential risk in
allowing contractors to carry and use weapons in a hostile environment,
which may arise in some of the situations covered by this clause.
However, since the clause will be used for a variety of situations and
circumstances, the most practical approach is to give the combatant
commander the final decision as to whether to allow contractors to
carry and use weapons and the types of weapons that will be authorized.
The clause has been amended to caution that contractor personnel are
not combatants and shall not undertake any role that would jeopardize
that status. The clause already requires the Contractor to ensure that
its personnel who are authorized to carry weapons are adequately
trained. That should include training not only on how to use a weapon,
but when to use a weapon.
d. Contractor and contractor employees must agree to accept
weapons.
Comment: Several respondents want the rule to clarify that
acceptance of weapons by contractor employees is strictly voluntary and
must be explicitly authorized by the contractor.
[[Page 23798]]
DoD Response: Concur in part. The clause has been amended to
explicitly state that the contractor must request authorization for its
employees to carry weapons before the combatant commander authorizes
such activity. It is the contractor's responsibility to determine
whether to request authorization and for which employees to request
such authorization. The employer-employee relationship is the
responsibility of the contractor and its employees and should be dealt
with in the employment agreement, not through the contract clause, as
the Government has no privity of contract directly with the employees.
e. Contractor liability.
Comment: Several respondents are concerned about unmitigated
liability for contractors in the event of injury or loss of life
resulting from intentional use or accidental discharge of such weapons.
The Government should indemnify and hold harmless the contractor
against all losses, costs, claims, and causes of action relating to the
use of Government-furnished weapons by contractor and/or contractor's
employees. Unless the Government has and exercises authority to
indemnify contractors and their employees against all claims for damage
or injury and to ensure immunity from criminal prosecution associated
with the use of weapons during deployment operations, the proposed
clause should be modified to prohibit the issuance of weapons to
contractor personnel.
DoD Response: Nonconcur. The clause in no way obligates contractors
to allow their employees to carry weapons. Contractor personnel will
only carry weapons if the contractor requests that its employees be
allowed to carry weapons and the combatant commander authorizes the
carrying of weapons. DoD cannot indemnify contractors and their
personnel against all claims for damage or injury or ensure immunity
from criminal prosecution associated with the use of weapons. Decisions
to indemnify are made in accordance with FAR 50.403-1.
f. Specified contractor employees.
Comment: The word ``specified'' is not clear and could be
interpreted to mean the Government specifies which contractor personnel
would be issued the firearm, which the Government is not allowed to do.
DoD Response: Concur in part. The clause has been amended to
clearly state that it is the contractor's responsibility to request
that its personnel in the theater of operations be authorized to carry
weapons. Therefore, it would be up to the contractor to determine which
specific employees will be authorized to carry weapons and the criteria
for that authorization.
g. Redeployment or revocation.
Comment: Upon termination of the commander's authority, the
contractor is required to return any Government-issued firearms
according to the direction given by the contracting officer. One
respondent requests that, if the employee is permitted to carry
contractor-issued firearms, the employee must cease carrying those
firearms and must follow contractor-provided direction for their
disposition.
DoD Response: Nonconcur in part. It is the contractor's
responsibility to direct the disposition of contractor-provided
weapons.
h. DD Form 2760.
Comment: One respondent recommends required use of DD Form 2760
when weapons are issued, to ensure compliance with the Lautenberg
amendment regarding domestic violence convictions.
DoD Response: Partially concur. The clause requires the contractor
to ensure that its personnel who are authorized to carry weapons are
not barred from possession of a firearm by 18 U.S.C. 922. The draft DoD
Instruction on Procedures for the Management of Contingency Contractor
Personnel During Contingency Operations proposes additional
requirements for contracted security services, including submission of
a DD Form 2760 (Qualification to Possess Firearms and Ammunition) for
each individual employee that will be providing the security services.
19. Next of Kin (252.225-70XX(j)) (252.225-7040(n))
a. ``In-person notification.''
Comment: Several respondents have concerns about the requirement
for in-person notification.
DoD Response: Concur. It is the responsibility of the contractor to
determine how to notify its employee's next of kin.
b. Notify the contracting officer.
Comment: One respondent also suggests adding a requirement that the
contractor inform the contracting officer if the contractor is informed
through other than Government channels of the death, injury, or capture
of one of its employees, or if the employee appears to be missing, so
the Government can take action to verify and provide support as
appropriate.
DoD Response: Concur in part. The contractor is already required to
notify the contracting officer, because the contractor has a
responsibility to keep current personnel data in accordance with
paragraph (g) of the clause.
c. Point of contact for continuing support.
Comment: Personnel Recovery Policy OSD/Defense requires that, in
the case of a missing or captured contractor, the Government will
assign an official point of contact to the next of kin for continuing
support, and provision of information, as appropriate and proper.
DoD Response: Concur. In the case of missing, captured, or abducted
contractor personnel, the Government will assist in personnel recovery
actions in accordance with DoD Directive 2310.2, Personnel Recovery.
20. Evacuation of Bodies (252.225-XX(k)) (252.225-7040(o)) DoDD 1300.22
Comment: Several respondents believe that the clause places an
undue burden on the contractor and does not adequately address
Government responsibilities or procedures; question the meaning of
``point of identification''; and request that the clause be in
accordance with DoDD 1300.22, Mortuary Affairs Policy.
DoD Response: Concur. DoD has modified the clause to state that
mortuary affairs will be handled in accordance with DoD Directive
1300.22.
21. Evacuation (252.225-70XX (l)) (252.225-7040(m))
a. Mandatory evacuation.
Comment: Some respondents want to add, after ``Combatant
Commander,'' the phrase ``or other competent authority'' or ``or other
authority over the U.S. Forces.''
DoD Response: Nonconcur. The combatant commander has the authority
to delegate within the military chain of command. If the ambassador
orders an evacuation, that is the intervention of a sovereign authority
and the obligation to comply is not created by the contract. Procedures
for evacuation are provided for in other regulations and are outside
the scope of this rule.
Comment: Another respondent states that if the Government decides
to evacuate contractor personnel, the Government should furnish
transportation to do so.
DoD Response: Concur in part. The clause provides that the
Government will provide assistance to the extent feasible to United
States and third country national contractor personnel. Government
guaranteed evacuation may or may not be possible in a fluid situation.
Setting forth a promise that the Government may not be able to meet
would be misleading to potential employees.
b. Nonmandatory evacuation--continued contract performance.
[[Page 23799]]
Comment: One respondent wants evacuation of contractor personnel
and their dependents whenever conditions cause the United States to
issue travel warnings or permit voluntary evacuation of non-essential
U.S. Government personnel and dependants.
DoD Response: Nonconcur. The situations covered by this clause are
not the type of situations in which DoD envisions that contractor
personnel would have dependents with them. The Contractor has been
warned in paragraph (b) about the risks of supporting the force in such
operations, and contractor personnel who are unwilling to accept these
risks should not be in these positions.
Comment: Another respondent requests modification of paragraph (l)
to allow for evacuation of contractor employees due to the inherent
dangers associated with job performance during deployment. This change
is necessary to meet legal requirements that an employer provide a safe
workplace for employees. Any clause governing deployment of contractor
personnel should contain language excusing contractor performance in
the event of refusal of contractor personnel to accompany the force or
to perform work upon deployment.
DoD Response: Nonconcur. Since these are contracts to support the
war fighter, by their nature these contracts are likely to involve some
risk. It is the contractor's responsibility to ensure that it has
willing personnel to fulfill the contract terms.
Comment: Several respondents recommend inserting ``essential''
between ``meet'' and ``contractual'' in the final sentence.
DoD Response: Nonconcur. A nonmandatory evacuation will not
necessarily constitute a crisis situation as defined in DoDI 3020.37.
DoD has added PGI guidance regarding identification in the contract of
mission essential services that would require continued performance
during crisis situations outside the United States. If the contract
specifies which mission essential services must be continued during a
crisis situation, and the non-mandatory evacuation order is during a
crisis situation, then meeting the contractual obligations will only
entail the continued performance of mission essential services. If the
contract does not specify which services are mission essential, or the
situation is not a crisis, the contracting officer can still designate
that certain contractor personnel may leave.
22. Insurance (252.225-70XX(m)) (deleted from 252.225-7040)
a. Contractor responsibility for employee's personal insurance
policies.
Comment: Several respondents object to this paragraph in the
proposed rule, finding that it is confusing. One respondent finds an
erroneous inference that contractors will or do provide employees with
personal insurance policies over and above company-sponsored coverage,
or that the contractor is responsible for any gaps that may exist in
personal coverage. Several respondents believe that paragraph (m),
placing responsibility on the contractor for all issues dealing with
the exclusions contained in an employee's personal insurance policies,
conflicts with the statutory requirements and protections of the
Defense Base Act, 42 U.S.C. 1651 et seq., and the War Hazards
Compensation Act, 42 U.S.C. 1701 et seq.
DoD Response: Concur in part. DoD agrees that the language is
somewhat confusing and open to misinterpretation, and has therefore
removed this paragraph in the final rule.
b. Defense Base Act, War Hazards Compensation Act, and other
workers' compensation programs.
Comment: Some respondents recommend that the clause make reference
to existing FAR and DFARS clauses regarding the Defense Base Act
clauses and various workers' compensation programs. In doing so,
contractors may avoid purchasing unnecessary coverage, the cost of
which is passed to the Government. One respondent recommends that each
of the clauses implementing the Defense Base Act and the War Hazards
Compensation Act be identified for mandatory inclusion in contracts
covered by this clause.
DoD Response: Concur in part. DoD has included guidance in PGI
regarding additional clauses to consider when using the clause at DFARS
252.225-7040. The PGI guidance recommends consideration of either the
clause at FAR 52.228-3, Worker's Compensation Insurance (Defense Base
Act), or the clause at FAR 52.228-4, Worker's Compensation and War
Hazard Insurance, in accordance with the clause prescriptions at FAR
28.309(a) and (b); use of the clause at FAR 52.228-7, Insurance-
Liability to Third Persons, in cost-reimbursement contracts as
prescribed at DFARS 228.311-1; and use of the clauses at FAR 52.251-1,
Government Supply Sources, as prescribed at FAR 51.107, and DFARS
252.251-7000, Ordering from Government Supply Sources, as prescribed at
DFARS 251.107.
Additionally, all other appropriate FAR and DFARS clauses will be
included in the contract consistent with the prescriptions as to
situations where they are applicable. This clause does not need to
repeat the prescriptions for use of clauses that are already in the FAR
and DFARS.
c. Government should facilitate larger risk pool.
Comment: One respondent believes that additional insurance coverage
for war hazards, normally excluded from group life insurance policies,
should be an allowable cost and recommends that the Government
establish a mechanism for facilitating that coverage on an industry-
wide basis in order to allow contractors to pool purchasing power.
DoD Response: Outside scope. The suggestions set forth, even if
they were beneficial, are beyond the charter and authority of the DAR
Council. DoD is participating in an interagency group, chaired by the
Department of State, that is looking into insurance issues related to
the Iraqi reconstruction.
23. Processing and Departure Points (252.225-70XX(n)) (252.225-7040(f))
a. Purpose of deployment processing.
Comment: One respondent recommended adding a sentence to state the
purpose of deployment processing.
DoD Response: Concur. DoD has added language stating the purpose of
deployment processing.
b. Joint Reception Center.
Comment: Another respondent suggests adding language about the
Government notifying contractor personnel of all specific policies and
requirements for personnel operating within the theater of deployment
(IAW Joint Pub 4-0, Doctrine for Logistics Support of Joint Operations,
Chapter V, Contractors in Theater).
DoD Response: Concur. The requirement to process through a Joint
Reception Center in the theater of operations has been added to the
clause.
24. Scarce Goods and Services (252.225-70XX(o)) (252.225-7040(l))
a. Afford excusable delay relief and equitable adjustment
allowance.
Comment: One respondent expresses a concern that, if a contractor
is not able to obtain scarce items in order to meet contract
performance, this will impact the ability of the contractor to meet the
terms and conditions of the contract, and that a contractor should be
afforded an excusable delay and allowance for an equitable adjustment.
DoD Response: Concur in part. DoD has revised the clause language
to
[[Page 23800]]
provide greater latitude to contractors for acquiring goods and
services, so that they are not put in an untenable position. However,
the processes and procedures for an equitable adjustment are already
sufficiently covered under existing acquisition rules and regulations.
b. Let contractor know about scarce commodities prior to contract
formation.
Comment: Such requirements to obtain approval of scarce commodities
from the combatant commander's purchase review committee should be
provided to the contractor prior to contract formation.
DoD Response: Concur in part. It is a good idea to provide this
information in advance when available, but it is impossible to know all
of the military operations that will occur during the period of
performance on any specific contract, and it is not possible for the
Government to provide contractors an advance listing of all those
commodities that will be considered scarce.
c. Acquisition of weapons, ammunition, and personal protective
gear.
Comment: One respondent is concerned that this language could
prohibit or impede Private Security Companies from meeting their
contract requirements and could compromise the physical safety of
personnel.
DoD Response: Nonconcur. This paragraph in the clause covers local
purchases of scarce goods such as clean water, fresh food, or building
materials that might be in scarce supply in the local area, not
weapons, ammunition, and personal protective gear. The clause has been
revised to clarify that the contractor must coordinate local purchases
of goods and services.
d. Further revision.
In addition, DoD has expanded the clause to cover scarce services,
such as translators.
25. Changes (252.225-70XX(p) and (q)) (252.225-7040(p))
a. Object to paragraphs (p) and (q) of 252.225-70XX.
Comment: Many respondents had concerns about paragraphs (p) and
(q). They are concerned that these paragraphs went beyond the
``Changes'' clause, to include what the contractor may consider out-of-
scope changes. This could lead to the appearance of a personal services
contract. Paragraph (p) could violate the Competition in Contracting
Act and may lead to unauthorized commitments. The language raises
questions about the Antideficiency Act in situations where the
emergency exception may not apply. The contractor should not be put in
position of determining whose orders take precedence (contracting
officer or combatant commander) or whether a commander giving an order
has appropriate authority.
DoD Response: Concur. The proposed language is not consistent with
existing procurement law and policy. DoD has substantially revised
paragraph (p) and deleted the paragraph (q) that was in the clause in
the proposed rule.
b. Generally support the inclusion of (p) and (q), but recommended
clarifying or expanding.
Comment: Some respondents support providing authority for the
military commander to have the flexibility to direct contractors,
recommend expanding it to make it available to the lowest level of
military command, and recommend expanding it beyond its limitations to
``all transportation, logistical and support requirements.'' They
recommend inclusion of a provision that prevents combatant commanders
from ordering contractors to engage in armed conflict; recommend that
paragraph (q) address all changes in emergency situations; and
recommend that contractors be excused from complying with any order or
directive that the contractor reasonably believes is contrary to law or
international treaty. It is imperative that actions by commanders that
are inconsistent with the contract be recognized as changes. The rule
should make clear what types of direction a combatant commander may
issue and should add language that requires 48-hour notification by the
contractor to the contracting officer's representative.
DoD Response: Nonconcur. DoD does not recommend any revisions or
expansions to the authorities of the combatant commander in paragraphs
(p) and (q) of the clause in the proposed rule. The authority of
combatant commanders to issue instructions is not dependent on contract
provisions. Therefore, it is out of scope to address in this rule their
authorities relative to hostile or non-hostile environments, or to
address any documentation requirements flowing from their exercising
such authority.
Instead of paragraphs (p) and (q) of the clause in the proposed
rule, DoD has added a new paragraph (p) that refers to the Changes
clause of the contract, but adds provision for coverage of changes in
Government-furnished facilities, equipment, material, services, or
site.
c. Generally agree with equitable adjustment for changes but
recommend changes in wording or scope.
Comment: Several respondents request revision of the proposed
clause to address the fundamental issue of reimbursement to the
contractor for additional costs and risks associated with deployment of
contractor personnel. One respondent requests an equitable adjustment
for continued contract performance, which would require segregation of
all costs incurred in support of deployed military forces involved in
humanitarian, peacekeeping, contingency, or combat operations.
Another respondent recommends addition of language that would
require the contracting officer to approve requests for equitable
adjustment, absent fraud, falsehood, or willful misconduct on the
contractor's part. One respondent recommends addition of a new
paragraph allowing the contractor to request equitable adjustment for
unexpected costs beyond their reasonable control. Another respondent is
concerned that the proposed rule would limit the ability of a
contractor to submit a request for equitable adjustment to the
situations described in (p) and (q). Therefore, other types of claims
such as for delay and disruption or for third-party liability not
covered by insurance appear to be proscribed.
DoD Response: Nonconcur. The authority of a combatant commander to
issue orders is not a function of contract language, and remedies for
additional costs incurred, if they exist, are either addressed by
existing procurement laws and regulations (e.g., constructive changes
doctrine) or found in non-contractual remedies. As already stated, DoD
has substantially modified paragraph (p) and deleted paragraph (q) in
its entirety, and reaffirmed reliance on the Changes clause of the
contract.
26. Subcontracts (252.225-70XX(r)) (252.225-7040(q))
Comment: Some respondents are concerned about the impact this
paragraph would have on subcontracts if the whole clause is flowed
down. There is concern that this paragraph commits the Government to
undertake affirmative support of such subcontractors. Some respondents
question how privity of contract between the prime and their
subcontracts will be handled when combatant commanders or senior
military personnel give directions to subcontract personnel.
DoD Response: The intent of most of the areas addressed under this
clause is to ensure that all contractor personnel, prime and
subcontract personnel, who accompany and support the force have the
kind of support they need to ensure their safety and security. The
intent is
[[Page 23801]]
not for the Government to establish a privity of contract relationship
with the subcontractors. Furthermore, paragraph (p) has been
substantially modified and (q) of the clause in the proposed rule has
been deleted.
27. Paperwork Reduction
Comment: Only one respondent commented on the information
collection requirements of the proposed rule. That respondent considers
that the proposed rule constitutes an information collection
requirement which imposes a burden on contractors because, in the event
of direction issued to a contractor by a Government official other than
a contracting officer, the contractor must comply with FAR 43.104,
Notification of contract changes. The respondent contends that the
proposed clause provides authority for combatant commanders and
hundreds of subordinate military commanders to issue orders to the
contractor, for which the contractor must execute notices and records
as required by FAR 43.104.
DoD Response: Nonconcur. The clause at 52.243-7, Notification of
Changes, already has an approved information collection requirement
burden under OMB Clearance Number 9000-026, which covers all Government
agencies that use the FAR clause. Moreover, with the removal of
paragraph (q) from the final clause, there should no more than an
average number of such notifications required.
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 certifies that this final rule will not 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 this rule does not impose economic burdens on contractors. The
purpose and effect of this rule is to relieve the current perceived
burden on contractors operating in a contingency environment without
consistent DoD guidance or a standardized clause. By establishing a
standardized clause, spelling out the standardized rules such as the
need for a Letter of Authorization, and providing specific guidelines
on force protection and resuscitative medical care, this rule
effectively reduces the burden on small businesses. It establishes a
framework within which it will be easier for contractors to operate
overseas. In addition, the availability of Government deployment
centers in the United States will make it easier for small businesses
to meet all deployment requirements. DoD did not receive any comments
with regard to the Regulatory Flexibility Act or the impact of the
proposed rule on small businesses.
C. Paperwork Reduction Act
This 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 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.
List of Subjects in 48 CFR Parts 207, 212, 225, and 252
Government procurement.
Michele P. Peterson,
Editor, Defense Acquisition Regulations System.
0
Therefore, 48 CFR Parts 207, 212, 225, and 252 are amended as follows:
PART 207--ACQUISITION PLANNING
0
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.
0
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) Special considerations for acquisition planning for crisis
situations outside the United States. Ensure that the requirements of
DoD Instruction 3020.37, Continuation of Essential DoD Contractor
Services During Crises, are addressed. Also see the guidance at PGI
207.105(b)(19)(E).
PART 212--ACQUISITION OF COMMERCIAL ITEMS
0
3. Section 212.301 is amended by adding paragraphs (f)(vii) and (viii)
to read as follows:
212.301 Solicitation provisions and contract clauses for the
acquisition of commercial items.
* * * * *
(f) * * *
(vii) Use the clause at 252.225-7040, Contractor Personnel
Supporting a Force Deployed Outside the United States, as prescribed in
225.7402-4.
(viii) Use the clause at 252.225-7043, Antiterrorism/Force
Protection Policy for Defense Contractors Outside the United States, in
solicitations and contracts that include the clause at 252.225-7040.
PART 225--FOREIGN ACQUISITION
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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.
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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 Contractor personnel supporting a force deployed outside
the United States.
225.7402-1 Scope.
225.7402-2 Definitions.
225.7402-3 Government support.
225.7402-4 Contract clauses.
225.7403 Antiterrorism/force protection.
225.7403-1 General.
225.7403-2 Contract clause.
225.7401 General.
(a) If an 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.per.hqusareur.army.mil/cpd/docper/default.htm.
(c) For work performed in Japan or Korea, see PGI 225.7401(c) for
information on bilateral agreements and policy relating to contractor
employees in Japan or Korea.
[[Page 23802]]
225.7402 Contractor personnel supporting a force deployed outside the
United States.
225.7402-1 Scope.
This section applies to contracts requiring contractor personnel to
deploy with or otherwise provide support in the theater of operations
to U.S. military forces deployed outside the United States in--
(a) Contingency operations;
(b) Humanitarian or peacekeeping operations; or
(c) Other military operations or exercises designated by the
combatant commander.
225.7402-2 Definitions.
Combatant commander and theater of operations, as used in this
section, have the meaning given in the clause at 252.225-7040,
Contractor Personnel Supporting a Force Deployed Outside the United
States.
225.7402-3 Government support.
(a) Government support that may be authorized or required for
contractor personnel performing in a theater of operations may include,
but is not limited to, the types of support listed in PGI 225.7402-
3(a).
(b) The contracting officer shall--
(1) Ensure that the contract contains valid terms, approved by the
combatant commander, that specify the responsible party, if a party
other than the combatant commander is responsible for providing
protection to the contractor personnel performing in the theater of
operations as specified in 225.7402-1;
(2) Specify in the terms of the contract, if medical or dental care
is authorized beyond the standard specified in paragraph (c)(2)(i) of
the clause at 252.225-7040, Contractor Personnel Supporting a Force
Deployed Outside the United States;
(3) Provide direction to the contractor, if the contractor is
required to reimburse the Government for medical treatment or
transportation of contractor personnel to a selected civilian facility
in accordance with paragraph (c)(2)(ii) of the clause at 252.225-7040;
and
(4) Specify in the contract the exact support to be authorized or
required if the Government authorizes or requires contractor personnel
to use any other Government-provided support.
(c) Contractor personnel must have a letter of authorization (LOA)
issued by a contracting officer in order to process through a
deployment center or to travel to, from, or within the theater of
operations. The LOA also will identify any additional authorizations,
privileges, or Government support that the contractor personnel are
entitled to under the contract. For a sample LOA, see PGI 225.7402-
3(c).
225.7402-4 Contract clauses.
(a) Use the clause at 252.225-7040, Contractor Personnel Supporting
a Force Deployed Outside the United States, in solicitations and
contracts when contract performance requires that contractor personnel
be available to deploy with or otherwise provide support in the theater
of operations to U.S. military forces deployed outside the United
States in--
(1) Contingency operations;
(2) Humanitarian or peacekeeping operations; or
(3) Other military operations or exercises designated by the
combatant commander.
(b) For additional guidance on clauses to consider when using the
clause at 252.225-7040, see PGI 225.7402-4(b).
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 offices listed in
PGI 225.7403-1.
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
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6. Section 252.225-7040 is added to read as follows:
252.225-7040 Contractor Personnel Supporting a Force Deployed Outside
the United States.
As prescribed in 225.7402-4(a), use the following clause:
Contractor Personnel Supporting a Force Deployed Outside the United
States (Jun 2005)
(a) Definitions. As used in this clause--
Combatant Commander means the commander of a unified or
specified combatant command established in accordance with 10 U.S.C.
161.
Theater of operations means an area defined by the combatant
commander for the conduct or support of specific operations.
(b) General. (1) This clause applies when contractor personnel
deploy with or otherwise provide support in the theater of
operations to U.S. military forces deployed outside the United
States in--
(i) Contingency operations;
(ii) Humanitarian or peacekeeping operations; or
(iii) Other military operations or exercises designated by the
Combatant Commander.
(2) Contract performance in support of U.S. military forces may
require work in dangerous or austere conditions. The Contractor
accepts the risks associated with required contract performance in
such operations.
(3) Contractor personnel are not combatants and shall not
undertake any role that would jeopardize their status. Contractor
personnel shall not use force or otherwise directly participate in
acts likely to cause actual harm to enemy armed forces.
(c) Support. (1) The Combatant Commander will develop a security
plan to provide protection, through military means, of Contractor
personnel engaged in the theater of operations unless the terms of
this contract place the responsibility with another party.
(2)(i) All Contractor personnel engaged in the theater of
operations are authorized resuscitative care, stabilization,
hospitalization at level III military treatment facilities, and
assistance with patient movement in emergencies where loss of life,
limb, or eyesight could occur. Hospitalization will be limited to
stabilization and short-term medical treatment with an emphasis on
return to duty or placement in the patient movement system.
(ii) When the Government provides medical treatment or
transportation of Contractor personnel to a selected civilian
facility, the Contractor shall ensure that the Government is
reimbursed for any costs associated with such treatment or
transportation.
(iii) Medical or dental care beyond this standard is not
authorized unless specified elsewhere in this contract.
(3) Unless specified elsewhere in this contract, the Contractor
is responsible for all other support required for its personnel
engaged in the theater of operations under this contract.
(d) Compliance with laws and regulations. The Contractor shall
comply with, and shall ensure that its personnel supporting a force
deployed outside the United States as specified in paragraph (b)(1)
of this clause are familiar with and comply with, all applicable--
(1) United States, host country, and third country national
laws;
(2) Treaties and international agreements;
(3) United States regulations, directives, instructions,
policies, and procedures; and
(4) Orders, directives, and instructions issued by the Combatant
Commander relating to force protection, security, health, safety, or
relations and interaction with local nationals.
(e) Pre-deployment requirements. The Contractor shall ensure
that the following requirements are met prior to deploying personnel
in support of U.S. military forces. Specific requirements for each
category may
[[Page 23803]]
be specified in the statement of work or elsewhere in the contract.
(1) All required security and background checks are complete and
acceptable.
(2) All deploying personnel meet the minimum medical screening
requirements and have received all required immunizations as
specified in the contract. The Government will provide, at no cost
to the Contractor, any theater-specific immunizations and/or
medications not available to the general public.
(3) Deploying personnel have all necessary passports, visas, and
other documents required to enter and exit a theater of operations
and have a Geneva Conventions identification card from the
deployment center.
(4) Country and theater clearance is obtained for personnel.
Clearance requirements are in DoD Directive 4500.54, Official
Temporary Duty Abroad, and DoD 4500.54-G, DoD Foreign Clearance
Guide. Contractor personnel are considered non-DoD personnel
traveling under DoD sponsorship.
(f) Processing and departure points. Deployed contractor
personnel shall--
(1) Process through the deployment center designated in the
contract, or as otherwise directed by the Contracting Officer, prior
to deploying. The deployment center will conduct deployment
processing to ensure visibility and accountability of contractor
personnel and to ensure that all deployment requirements are met;
(2) Use the point of departure and transportation mode directed
by the Contracting Officer; and
(3) Process through a Joint Reception Center (JRC) upon arrival
at the deployed location. The JRC will validate personnel
accountability, ensure that specific theater of operations entrance
requirements are met, and brief contractor personnel on theater-
specific policies and procedures.
(g) Personnel data list. (1) The Contractor shall establish and
maintain with the designated Government official a current list of
all contractor personnel that deploy with or otherwise provide
support in the theater of operations to U.S. military forces as
specified in paragraph (b)(1) of this clause. The Contracting
Officer will inform the Contractor of the Government official
designated to receive this data and the appropriate automated
system(s) to use for this effort.
(2) The Contractor shall ensure that all employees on the list
have a current DD Form 93, Record of Emergency Data Card, on file
with both the Contractor and the designated Government official.
(h) Contractor personnel. (1) The Contracting Officer may direct
the Contractor, at its own expense, to remove and replace any
contractor personnel who jeopardize or interfere with mission
accomplishment or who fail to comply with or violate applicable
requirements of this clause. Such action may be taken at the
Government's discretion without prejudice to its rights under any
other provision of this contract, including the Termination for
Default clause.
(2) The Contractor shall have a plan on file showing how the
Contractor would replace employees who are unavailable for
deployment or who need to be replaced during deployment. The
Contractor shall keep this plan current and shall provide a copy to
the Contracting Officer upon request. The plan shall--
(i) Identify all personnel who are subject to military
mobilization;
(ii) Detail how the position would be filled if the individual
were mobilized; and
(iii) Identify all personnel who occupy a position that the
Contracting Officer has designated as mission essential.
(i) Military clothing and protective equipment. (1) Contractor
personnel supporting a force deployed outside the United States as
specified in paragraph (b)(1) of this clause are prohibited from
wearing military clothing unless specifically authorized in writing
by the Combatant Commander. If authorized to wear military clothing,
Contractor personnel must wear distinctive patches, arm bands,
nametags, or headgear, in order to be distinguishable from military
personnel, consistent with force protection measures and the Geneva
Conventions.
(2) Contractor personnel may wear military-unique organizational
clothing and individual equipment (OCIE) required for safety and
security, such as ballistic, nuclear, biological, or chemical
protective clothing.
(3) The deployment center, or the Combatant Commander, shall
issue OCIE and shall provide training, if necessary, to ensure the
safety and security of contractor personnel.
(4) The Contractor shall ensure that all issued OCIE is returned
to the point of issue, unless otherwise directed by the Contracting
Officer.
(j) Weapons. (1) If the Contractor requests that its personnel
performing in the theater of operations be authorized to carry
weapons, the request shall be made through the Contracting Officer
to the Combatant Commander. The Combatant Commander will determine
whether to authorize in-theater contractor personnel to carry
weapons and what weapons will be allowed.
(2) The Contractor shall ensure that its personnel who are
authorized to carry weapons--
(i) Are adequately trained;
(ii) Are not barred from possession of a firearm by 18 U.S.C.
922; and
(iii) Adhere to all guidance and orders issued by the Combatant
Commander regarding possession, use, safety, and accountability of
weapons and ammunition.
(3) Upon redeployment or revocation by the Combatant Commander
of the 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.
(k) Vehicle or equipment licenses. Contractor personnel shall
possess the required licenses to operate all vehicles or equipment
necessary to perform the contract in the theater of operations.
(l) Purchase of scarce goods and services. If the Combatant
Commander has established an organization for the theater of
operations whose function is to determine that certain items are
scarce goods or services, the Contractor shall coordinate with that
organization local purchases of goods and services designated as
scarce, in accordance with instructions provided by the Contracting
Officer.
(m) Evacuation. (1) 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 national contractor personnel.
(2) In the event of a non-mandatory evacuation order, unless
authorized in writing by the Contracting Officer, the Contractor
shall maintain personnel on location sufficient to meet obligations
under this contract.
(n) Next of kin notification and personnel recovery. (1) The
Contractor shall be responsible for notification of the employee-
designated next of kin in the event an employee dies, requires
evacuation due to an injury, or is missing, captured, or abducted.
(2) In the case of missing, captured, or abducted contractor
personnel, the Government will assist in personnel recovery actions
in accordance with DoD Directive 2310.2, Personnel Recovery.
(o) Mortuary affairs. Mortuary affairs for contractor personnel
who die while providing support in the theater of operations to U.S.
military forces will be handled in accordance with DoD Directive
1300.22, Mortuary Affairs Policy.
(p) Changes. In addition to the changes otherwise authorized by
the Changes clause of this contract, the Contracting Officer may, at
any time, by written order identified as a change order, make
changes in Government-furnished facilities, equipment, material,
services, or site. Any change order issued in accordance with this
paragraph (p) shall be subject to the provisions of the Changes
clause of this contract.
(q) Subcontracts. The Contractor shall incorporate the substance
of this clause, including this paragraph (q), in all subcontracts
that require subcontractor personnel to be available to deploy with
or otherwise provide support in the theater of operations to U.S.
military forces deployed outside the United States in--
(1) Contingency operations;
(2) Humanitarian or peacekeeping operations; or
(3) Other military operations or exercises designated by the
Combatant Commander. (End of clause)
252.225-7043 [Amended]
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7. Section 252.225-7043 is amended in the introductory text by removing
``225.7402'' and adding in its place ``225.7403-2''.
[FR Doc. 05-9007 Filed 5-4-05; 8:45 am]
BILLING CODE 5001-08-P