[Federal Register Volume 71, Number 137 (Tuesday, July 18, 2006)]
[Proposed Rules]
[Pages 40681-40685]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-6278]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 2, 7, 12, 25, 52
[FAR Case 2005-011; Docket 2006-0020; Sequence 3]
RIN: 9000-AK42
Federal Acquisition Regulation; FAR Case 2005-011, Contractor
Personnel in a Theater of Operations or at a Diplomatic or Consular
Mission
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) are proposing to amend the
Federal Acquisition Regulation (FAR) to address the issues of
contractor personnel that are providing support to the mission of the
United States Government in the theater of operations or at a
diplomatic or consular mission outside the United States, but are not
covered by the DoD clause for contractor personnel authorized to
accompany the U.S. Armed Forces.
DATES: Interested parties should submit written comments to the FAR
Secretariat on or before September 18, 2006 to be considered in the
formulation of a final rule.
ADDRESSES: Submit comments identified by FAR case 2005-011 by any of
the following methods:
Federal eRulemaking Portal: http://acquisition.gov. Follow
the instructions for submitting comments.
Agency Web site: http:// http://acquisition.gov/far/ProposedRules/proposed.htm">acquisition.gov/far/ProposedRules/proposed.htm. Click on the FAR case number to submit
comments.
E-mail: [email protected]. Include FAR case 2005-
011 in the subject line of the message.
Fax: 202-501-4067.
Mail: General Services Administration, Regulatory
Secretariat (VIR), 1800 F Street, NW., Room 4035, ATTN: Laurieann
Duarte, Washington, DC 20405.
Instructions: Please submit comments only and cite FAR case 2005-
011 in all correspondence related to this case. All comments received
will be posted without change to http://acquisition.gov/far/ProposedRules/proposed.htm, including any personal and/or business
confidential information provided.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Linda Nelson, Procurement Analyst, at (202) 501-1900. The TTY Federal
Relay Number for further information is 1-800-877-8973. Please cite FAR
case 2005-011. For information pertaining to status or publication
schedules, contact the FAR Secretariat at (202) 501-4755.
SUPPLEMENTARY INFORMATION:
A. Background
This rule proposes to create a new FAR Subpart 25.3 to address
issues relating to contractors outside the United States, including new
section 25.302, Contractor personnel in a theater of operations or at a
diplomatic or consular mission outside the United States. The rule also
proposes a new clause entitled ``Contractor Personnel in a Theater of
Operations or at a Diplomatic or Consular Mission Outside the United
States.''
The clause applies when contractor personnel are employed outside
the United States--
In a theater of operations during--
Contingency operations;
Humanitarian or peacekeeping operations;
Other military operations; or
Military exercises designated by the combatant commander;
or
At a diplomatic or consular mission, when specified by the
chief of mission.
This new clause clarifies that contractor personnel are civilians.
Contractor personnel, except private security contractor personnel, are
not authorized to use deadly force against enemy armed forces other
than in self defense. Private security contractor personnel are only
authorized to use deadly force when necessary to execute their security
mission to protect assets/persons, consistent with the mission
statement contained in their contract. It is the responsibility of the
Combatant Commander to ensure that private security contract mission
statements do not authorize the performance of any inherently
Governmental military functions, such as preemptive attacks, or any
other types of attacks.
The clause also addresses such issues as responsibility for
logistical and security support, compliance with laws and regulations,
preliminary personnel requirements, processing and departure points,
personnel data lists, removal of contractor personnel, authorization of
weapons and ammunition, vehicle or equipment licenses, wearing of
military clothing and protective equipment, evacuation, personnel
recovery, notification and return of personal effects, mortuary
affairs, changes in place of performance or Government-furnished
facilities, equipment, material, services, or site, and flowdown of the
clause to subcontracts.
In preparation of this proposed rule, the Councils reviewed the
proposed rule published by the Department of State in the Federal
Register on December 22, 2004 (69 FR 76660). The Councils also
considered the final rule issued by the Department of Defense on May 5,
2005 (70 FR 23790) (DFARS Case 2003-D087, Contractor Personnel
Supporting a Force Deployed Outside the United States).
This is a significant regulatory action and, therefore, was subject
to review under Section 6(b) of Executive Order 12866, Regulatory
Planning and Review, dated September 30, 1993. This rule is not a major
rule under 5 U.S.C. 804.
B. Regulatory Flexibility Act
The Councils do not expect this proposed rule to have a significant
economic impact on a substantial number of small entities within the
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.,
because 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 guidance or a standardized clause. By establishing a
standardized clause spelling out the standardized rules, this rule
effectively reduces the burden on small business. It establishes a
framework within which it will be easier for contractors to operate
overseas. In addition, the availability of Government departure centers
in the United States will make it easier for small businesses to meet
all pre-departure requirements. An Initial Regulatory Flexibility
Analysis (IRFA) has therefore not been prepared. The Councils will also
consider comments from small entities concerning the affected FAR parts
2, 7, 12, 25, and 52 in accordance with 5 U.S.C. 610. Interested
parties should submit such comments separately and should cite 5 U.S.C.
601, et seq. (FAR Case 2005-011), in correspondence.
[[Page 40682]]
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the proposed
changes to the FAR do not impose information collection requirements
that require the approval of the Office of Management and Budget under
44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 2, 7, 12, 25, and 52
Government procurement.
Dated: July 10, 2006.
Linda K. Nelson
Acting Director, Contract Policy Division.
Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 2, 7,
12, 25, and 52 as set forth below:
1. The authority citation for 48 CFR parts 2, 7, 12, 25, and 52
continues to read as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 2--DEFINITIONS OF WORDS AND TERMS
2. Amend section 2.101(b)(2)by adding, in alphabetical order, the
definitions ``At a diplomatic or consular mission'' and ``Theater of
operations'' to read as follows:
2.101 Definitions.
* * * * *
(b) * * *
(2) * * *
At a diplomatic or consular mission means any location outside the
United States where a contractor performs a contract administered by
Federal agency personnel subject to the direction of a Chief of Mission
pursuant to Section 207 of the Foreign Service Act of 1980 (22 U.S.C.
3927).
* * * * *
Theater of operations means an area defined by the combatant
commander for the conduct or support of specific operations.
* * * * *
PART 7--ACQUISITION PLANNING
3. Amend section 7.105 by revising paragraphs (b)(13)(i) and
(b)(19) to read as follows:
7.105 Contents of written acquisition plans.
* * * * *
(b) * * *
(13) Logistics consideration. Describe--
(i) The assumptions determining contractor or agency support, both
initially and over the life of the acquisition, including consideration
of contractor or agency maintenance and servicing (see Subpart 7.3),
support for contracts to be performed in a theater of operations or at
a diplomatic or consular mission (see 25.302-3); and distribution of
commercial items;
* * * * *
(19) Other considerations. Discuss, as applicable, standardization
concepts, the industrial readiness program, the Defense Production Act,
the Occupational Safety and Health Act, foreign sales implications,
special requirements for contracts to be performed in a theater of
operations or at a diplomatic or consular mission, and any other
matters germane to the plan not covered elsewhere.
* * * * *
PART 12--ACQUISITION OF COMMERCIAL ITEMS
4. Revise section 12.301 by adding paragraph (b)(5) to read as
follows:
12.301 Solicitation provisions and contract clauses for the
acquisition of commercial items.
* * * * *
(b)(5) Insert the clause at 52.225-XX, Contractor Personnel in a
Theater of Operations or at a Diplomatic or Consular Mission outside
the United States, as prescribed in 25.302-5.
* * * * *
PART 25--FOREIGN ACQUISITION
5. Revise section 25.000 to read as follows:
25.000 Scope of part.
(a) This part provides policies and procedures for--
(1) Acquiring foreign supplies, services, and construction
materials; and
(2) Performance of contractor personnel outside the United States.
(b) It implements the Buy American Act, trade agreements, and other
laws and regulations.
* * * * *
6. Add Subpart 25.3 to read as follow:
Subpart 25.3--Contractors Outside the United States
Sec
25.301 [Reserved]
25.302 Contractor personnel in a theater of operations or at a
diplomatic or consular mission outside the United States.
25.302-1 Scope.
25.302-2 Definitions.
25.302-3 Government support.
25.302-4 Weapons.
25.302-5 Contract clauses.
Subpart 25.3--Contractors Outside the United States
25.301 [Reserved]
25.302 Contractor personnel in a theater of operations or at a
diplomatic or consular mission outside the United States.
25.302-1 Scope.
This section applies to contracts requiring contractor personnel to
perform outside the United States--
(a) In a theater of operations during--
(1) Contingency operations;
(2) Humanitarian or peacekeeping operations;
(3) Other military operations; or
(4) Military exercises designated by the combatant commander; or
(b) At a diplomatic or consular mission, when designated by the
chief of mission.
25.302-2 Definitions.
Chief of mission means the principal officer in charge of a
diplomatic mission of the United States or of a United States office
abroad which is designated by the Secretary of State as diplomatic in
nature, including any individual assigned under section 502(c) of the
Foreign Service Act of 1980 (Public Law 96-465) to be temporarily in
charge of such a mission or office.
Combatant Commander means the commander of a unified or specified
combatant command established in accordance with 10 U.S.C. 161.
Other military operations means a range of military force responses
that can be projected to accomplish assigned tasks. Such operations may
include one or a combination of the following: civic action,
humanitarian assistance, civil affairs, and other military activities
to develop positive relationships with other countries; confidence
building and other measures to reduce military tensions; military
presence; activities to convey messages to adversaries; military
deceptions and psychological operations; quarantines, blockades, and
harassment operations; raids; intervention operations; armed conflict
involving air, land, maritime, and strategic warfare operations;
support for law enforcement authorities to counter international
criminal activities (terrorism, narcotics trafficking, slavery, and
piracy); support for law enforcement authorities to suppress domestic
rebellion; and support for insurgency, counterinsurgency, and civil war
in foreign countries.
25.302-3 Government support.
(a) Generally, contractors are responsible for providing their own
logistical and security support,
[[Page 40683]]
including logistical and security support for their employees. The
agency shall provide logistical or security support only when the
appropriate agency official, in accordance with agency guidance,
determines that Government provision of such support is needed to
ensure continuation of essential contractor services and adequate
support cannot be obtained by the contractor from other sources.
(b) The contracting officer shall specify in the contract the exact
support to be provided, and whether this support is provided on a
reimbursable basis, citing the authority for the reimbursement.
25.302-4 Weapons.
The contracting officer shall follow agency procedures and the
weapons policy established by the combatant commander or the chief of
mission when authorizing contractor personnel to carry weapons (see
paragraph (i) of the clause at 52.225-XX, Contractor Personnel in a
Theater of Operations or at a Diplomatic or Consular Mission outside
the United States).
25.302-5 Contract clauses.
Insert the clause at 52.225-XX, Contractor Personnel in a Theater
of Operations or at a Diplomatic or Consular Mission outside the United
States, in solicitations and contracts when contract performance
requires that contractor personnel be available to perform outside the
United States--
(a) In a theater of operations during--
(1) Contingency operations;
(2) Humanitarian or peacekeeping operations;
(3) Other military operations; or
(4) Military exercises designated by the combatant commander; or
(b) At a diplomatic or consular mission, when specified by the
chief of mission.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
7. Add section 52.225-XX to read as follows:
52.225-XX Contractor Personnel in a Theater of Operations or at a
Diplomatic or Consular Mission outside the United States.
As prescribed in 25.302-5, insert the following clause:
CONTRACTOR PERSONNEL IN A THEATER OF OPERATIONS OR AT A DIPLOMATIC OR
CONSULAR MISSION OUTSIDE THE UNITED STATES ([INSERT ABBREVIATED MONTH
AND YEAR OF PUBLICATION IN THE FEDERAL REGISTER])
(a) Definitions. As used in this clause--
At a diplomatic or consular mission means any location outside
the United States where a Contractor performs a contract
administered by Federal agency personnel subject to the direction of
a Chief of Mission pursuant to Section 207 of the Foreign Service
Act of 1980 (22 U.S.C. 3927).
Chief of mission means the principal officer in charge of a
diplomatic mission of the United States or of a United States office
abroad which is designated by the Secretary of State as diplomatic
in nature, including any individual assigned under section 502(c) of
the Foreign Service Act of 1980 (Public Law 96-465) to be
temporarily in charge of such a mission or office.
Combatant Commander means the commander of a unified or
specified combatant command established in accordance with 10 U.S.C.
161.
Other military operations means a range of military force
responses that can be projected to accomplish assigned tasks. Such
operations may include one or a combination of the following: civic
action, humanitarian assistance, civil affairs, and other military
activities to develop positive relationships with other countries;
confidence building and other measures to reduce military tensions;
military presence; activities to convey messages to adversaries;
military deceptions and psychological operations; quarantines,
blockades, and harassment operations; raids; intervention
operations; armed conflict involving air, land, maritime, and
strategic warfare operations; support for law enforcement
authorities to counter international criminal activities (terrorism,
narcotics trafficking, slavery, and piracy); support for law
enforcement authorities to suppress domestic rebellion; and support
for insurgency, counterinsurgency, and civil war in foreign
countries.
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
are employed outside the United States--
(i) In a theater of operations during--
(A) Contingency operations;
(B) Humanitarian or peacekeeping operations;
(C) Other military operations; or
(D) Military exercises designated by the combatant commander; or
(ii) At a diplomatic or consular mission, when specified by the
chief of mission.
(2) Contract performance 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 civilians.
(i) Except as provided in paragraph (b)(3)(ii) of this clause,
Contractor personnel are not authorized to use deadly force against
enemy armed forces other than in self defense.
(ii) Private security Contractor personnel are authorized to use
deadly force only when necessary to execute their security mission
to protect assets/persons, consistent with the mission statement
contained in their contract.
(iii) Civilians lose their law of war protection from direct
attack if and for such time as they take a direct part in
hostilities.
(4) Service performed by Contractor personnel subject to this
clause is not active duty or service under 38 U.S.C. 106 note.
(c) Support. Unless specified elsewhere in the contract, the
Contractor is responsible for all logistical and security support
required for Contractor personnel engaged in this contract.
(d) Compliance with laws and regulations. The Contractor shall
comply with, and shall ensure that its personnel in the area of
performance in the theater of operations or at the diplomatic or
consular mission 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 Chief of
Mission or the Combatant Commander relating to mission
accomplishments, force protection, security, health, safety, or
relations and interaction with local nationals.
(e) Preliminary personnel requirements. (1) Specific
requirements for paragraphs (e)(2)(i) through (e)(2)(vi) of this
clause will be set forth in the statement of work, or elsewhere in
the contract.
(2) Before Contractor personnel depart from the United States or
a third country, and before Contractor personnel residing in the
host country begin contract performance in the theater of operations
or at the diplomatic or consular mission, the Contractor shall
ensure the following:
(i) All applicable specified security and background checks are
completed.
(ii) All personnel are medically and physically fit and have
received all required vaccinations.
(iii) All personnel have all necessary passports, visas, entry
permits, and other documents required for contractor personnel to
enter and exit the foreign country, including those required for in-
transit countries.
(iv) All personnel have received--
(A) A country clearance or special area clearance, if required
by the chief of mission; and
(B) A theater clearance, if required by the Combatant Commander.
(v) All personnel have received personal security training. The
training must at a minimum--
(A) Cover safety and security issues facing employees overseas;
(B) Identify safety and security contingency planning
activities; and
(C) Identify ways to utilize safety and security personnel and
other resources appropriately.
(vi) All personnel have received isolated personnel training, if
specified in the contract.
(vii) All personnel who are U.S. citizens are registered with
the U.S. Embassy or Consulate with jurisdiction over the area of
operations on-line at http://www.travel.state.gov.
(3) The Contractor shall notify all personnel who are not a host
country national or ordinarily resident in the host country that--
[[Page 40684]]
(i) If this contract is with the Department of Defense, or the
contract relates to supporting the mission of the Department of
Defense outside the United States, such employees, and dependents
residing with such employees, who engage in conduct outside the
United States that would constitute an offense punishable by
imprisonment for more than one year if the conduct had been engaged
in within the special maritime and territorial jurisdiction of the
United States, may potentially be subject to the criminal
jurisdiction of the United States (see the Military Extraterritorial
Jurisdiction Act of 2000 (18 U.S.C. 3261 et seq.);
(ii) Pursuant to the War Crimes Act, 18 U.S.C. 2441, Federal
criminal jurisdiction also extends to conduct that is determined to
constitute a violation of the law of war when committed by a
civilian national of the United States;
(iii) Other laws may provide for prosecution of U.S. nationals
who commit offenses on the premises of United States diplomatic,
consular, military or other United States Government missions
outside the United States (18 U.S.C. 7(9)).
(f) Processing and departure points. The Contractor shall
require its personnel who are arriving from outside the area of
performance to perform in the theater of operations or at the
diplomatic or consular mission to--
(1) Process through the departure center designated in the
contract or complete another process as directed by the Contracting
Officer;
(2) Use a specific point of departure and transportation mode as
directed by the Contracting Officer; and
(3) Process through a reception center designated by the
Contracting Officer upon arrival at the place of performance.
(g) Personnel data list. (1) The Contractor shall establish and
maintain with the designated Government official a current list of
all contractor personnel in the areas of performance. The
Contracting Officer will inform the Contractor of the Government
official designated to receive this data and the appropriate system
to use for this effort.
(2) The Contractor shall ensure that all employees on this list
have a current record of emergency data, for notification of next of
kin, on file with both the Contractor and the designated Government
official.
(h) Contractor personnel. 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 termination for default or cause.
(i) Weapons. (1) If the Contracting Officer, subject to the
approval of the Combatant Commander or the Chief of Mission,
authorizes the carrying of weapons--
(i) The Contracting Officer may authorize an approved Contractor
to issue Contractor-owned weapons and ammunition to specified
employees; or
(ii) The [specify individual, e.g. Contracting Officer
Representative, Regional Security Officer, etc,] may issue
Government-furnished weapons and ammunition to the Contractor for
issuance to specified contractor employees.
(2) The Contractor shall provide to the Contracting Officer a
specific list of personnel for whom authorization to carry a weapon
is requested.
(3) The Contractor shall ensure that its personnel who are
authorized to carry weapons--
(i) Are adequately trained to carry and use them--
(A) Safely;
(B) With full understanding of, and adherence to, the rules of
the use of force issued by the Combatant Commander or the Chief of
Mission; and
(C) In compliance with applicable agency policies, agreements,
rules, regulations, and other applicable law;
(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 or the Chief of Mission regarding possession, use, safety,
and accountability of weapons and ammunition.
(4) Upon revocation by the Contracting Officer of the
Contractor's authorization to possess weapons, the Contractor shall
ensure that all Government-furnished weapons and unexpended
ammunition are returned as directed by the Contracting Officer.
(5) Whether or not weapons are Government-furnished, all
liability for the use of any weapon by Contractor personnel rests
solely with the Contractor and the Contractor employee using such
weapon.
(j) Vehicle or equipment licenses. Contractor personnel shall
possess the required licenses to operate all vehicles or equipment
necessary to perform the contract in the area of performance.
(k) Military clothing and protective equipment. (1) Contractor
personnel are prohibited from wearing military clothing unless
specifically authorized 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.
(2) Contractor personnel may wear specific items required for
safety and security, such as ballistic, nuclear, biological, or
chemical protective equipment.
(l) Evacuation. (1) If the Chief of Mission or Combatant
Commander orders a mandatory evacuation of some or all personnel,
the Government will provide to United States and third country
national Contractor personnel the level of assistance provided to
private United States citizens.
(2) In the event of a non-mandatory evacuation order, the
Contractor shall maintain personnel on location sufficient to meet
contractual obligations unless instructed to evacuate by the
Contracting Officer.
(m) Personnel recovery. (1) In the case of isolated, missing,
detained, captured or abducted Contractor personnel, the Government
will assist in personnel recovery actions.
(2) Personnel recovery may occur through military action, action
by non-governmental organizations, other U.S. Government-approved
action, diplomatic initiatives, or through any combination of these
options.
(3) The Department of Defense has primary responsibility for
recovering DoD contract service employees and, when requested, will
provide personnel recovery support to other agencies in accordance
with DoD Directive 2310.2, Personnel Recovery.
(n) Notification and return of personal effects. (1) The
Contractor shall be responsible for notification of the employee-
designated next of kin, and notification as soon as possible to the
U.S. Consul responsible for the area in which the event occurred, if
the employee--
(i) Dies;
(ii) Requires evacuation due to an injury; or
(iii) Is isolated, missing, detained, captured, or abducted.
(2) The Contractor shall also be responsible for the return of
all personal effects of deceased or missing Contractor personnel, if
appropriate, to next of kin.
(o) Mortuary affairs. Mortuary affairs for Contractor personnel
who die in the area of performance will be handled as follows:
(1) If this contract was awarded by DoD, the remains of
Contractor personnel will be handled in accordance with DoD
Directive 1300.22, Mortuary Affairs Policy.
(2)(i) If this contract was awarded by an agency other than DoD,
the Contractor is responsible for the return of the remains of
Contractor personnel from the point of identification of the remains
to the location specified by the employee or next of kin, as
applicable, except as provided in paragraph (o)(2)(ii) of this
clause.
(ii) In accordance with 10 U.S.C. 1486, the Department of
Defense may provide, on a reimbursable basis, mortuary support for
the disposition of remains and personal effects of all U.S. citizens
upon the request of the Department of State.
(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 place of performance or Government-furnished facilities,
equipment, material, services, or site. Any change order issued in
accordance with this paragraph shall be subject to the provisions of
the Changes clause of this contract.
[[Page 40685]]
(q) Subcontracts. The Contractor shall incorporate the substance
of this clause, including this paragraph (q), in all subcontracts
that require subcontractor personnel to perform outside the United
States--
(1) In a theater of operations during--
(i) Contingency operations;
(ii) Humanitarian or peacekeeping operations;
(iii) Other military operations; or
(iv) Military exercises designated by the Combatant Commander;
or
(2) At a diplomatic or consular mission, when specified by the
chief of mission.
(End of clause)
[FR Doc. 06-6278 Filed 7-17-06; 8:45 am]
BILLING CODE 6820-EP-S