Panoptic Enterprises' FEDERAL CONTRACTS DISPATCH
DATE: March 23, 2004
SUBJECT: Defense Federal Acquisition Regulation Supplement (DFARS); Contractors Accompanying a Force Deployed
SOURCE: Federal Register, March 23, 2004, Vol. 69, No. 56, page
AGENCIES: Department of Defense (DOD)
ACTION: Proposed Rule
SYNOPSIS: In response to the growing reliance of the DOD on contractor personnel to provide support services in combat areas, this proposed rule would amend DFARS Subpart 225.74, retitled "Defense Contractors Outside the United States," and add a new clause, DFARS 252.225-70XX, Contractors Accompanying a Force Deployed for Contingency, Humanitarian, Peacekeeping, or Combat Operations, to add policy relating to contracts that require contractor employees to accompany a force engaged in contingency, humanitarian, peacekeeping, or combat operations outside the United States.
DATES: Comments on the proposed rule should be submitted on of before May 24, 2004.
ADDRESSES: Respondents may submit comments directly on the web site at http://emissary.acq.osd.mil/dar/dfars.nsf/pubcomm. As an alternative, respondents may e-mail comments to: email@example.com. Also, respondents who cannot submit comments through the web site or by e-mail may submit comments to Defense Acquisition Regulations Council, Attn: Amy Williams, OUSD(AT&L)DP(DAR), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062, or by fax to 703-602-0350. Cite "DFARS Case 2003-D087" when making comments on this proposed rule.
FOR FURTHER INFORMATION CONTACT: Amy Williams, (703) 602-0328.
SUPPLEMENTAL INFORMATION: This proposed rule would amend DFARS Subpart 225.74 and add DFARS 252.225-70XX to enable the uniform treatment of contractors that accompany a deployed force, and would enable combatant commanders to rapidly adjust contract requirements in response to changing conditions on the battlefield.
The following changes would be made to the DFARS by this proposed rule:
- The text of DFARS 225.802-70, Contracts for Performance Outside the United States and Canada, would be removed and relocated to the new DFARS companion resource, "Procedures, Guidance, and Information" (PGI). The PGI will contain mandatory and non-mandatory internal DOD procedures, non-mandatory guidance, and supplemental information. DFARS 225.802-70(a) would become PGI 225.802-70, and DFARS 225.802-70(b) would become PGI 225.7401, General. All that would remain of DFARS 225.802-70 would be a cross-reference to PGI 225.802-70 and DFARS Subpart 225.74. For more on the PGI, see the February 23, 2004, FEDERAL CONTRACTS DISPATCH "Defense Federal Acquisition Regulation Supplement (DFARS); Procedures, Guidance, and Information."
- DFARS Subpart 225.74, Antiterrorism/Force Protection Policy for Defense Contractors Outside the United States, would be renamed "Defense Contractors Outside the United States," and completely revised:
- Current DFARS 225.7401, General, would be redesignated as DFARS 225.7403-1, and current DFARS 225.7403, Contract Clause, would be redesignated as DFARS 225.7403-2. New DFARS 225.7403, Antiterrorism/Force Protection, would be merely a section heading with no text.
- New DFARS 225.7401, General, would reference PGI 225.7401 and Army in Europe Regulation 715-9 (available at http://www.chrma.hqusareur.army.mil/docper) for work performed in Germany.
- New DFARS 225.7402, Contractors Accompanying a Force Deployed for Contingency, Humanitarian, Peacekeeping, or Combat Operations, would state that contracts are generally to provide their own in-country support for their personnel, but use of government-provided support may be authorized or required when the contractor is accompanying a force (new DFARS 225.7402-1, Government Support of Cotnractor Personnel Accompanying a Force). Also, new DFARS 225.7402-2, Contract Clause, would require the inclusion of DFARS 252.225-70XX in solicitations and contracts when contract performance requires that contractor employees accompany, or be available to accompany, a force engaged in contingency, humanitarian, peacekeeping, or combat operations outside the United States.
- New DFARS 252.225-70XX would specify the following:
- "The contractor accepts the risks associated with required contract performance in such operations" (paragraph (b)(2)).
- The contractor shall comply with, and ensure its employees comply with, (1) U.S., host country, and local laws; (2) treaties and international agreements; (3) applicable U.S. regulations directives, instructions, policies, and procedures; (4) orders, directives, and instructions issued by the Combatant Commander relating to force protection, security, health, safety, or relations and interaction with local nationals; and (5) the Uniform Code of Military Justice where applicable (paragraph (d)).
- The contracting officer may direct the contractor to remove and replace any contractor personnel who jeopardize or interfere with mission accomplishment (paragraph (e)(1)).
- The contractor shall have a current plan showing how the contractor would replace employees who are unavailable for deployment or who need to be replaced during deployment (paragraph (e)(2)).
- Before deployment, the contractor shall ensure that all security and background checks are completed; all deploying personnel are medically and physically fit to endure the rigors of deployment and have received all required vaccinations; deploying personnel have all necessary passports, visas, and other documents required for contractor personnel to enter and exit an area of operations; and country and theater clearance is obtained for personnel (paragraph (g)).
- Contractor personnel accompanying the force are prohibited from wearing military clothing unless specifically authorized by the Combatant Commander, but they may wear specific items required for safety and security such as ballistic or nuclear, biological, or chemical protective clothing (paragraph (h)(1)).
- Contractor personnel may not possess privately-owned firearms, but the Combatant Commander may authorize the issuance of weapons and ammunition to the contractor for specific employees (paragraph (i)).
- Contractors are responsible for in-person notification of next-of-kin when an employee dies, is injured, is missing, or is captured (paragraph (j)). If an employee dies, the contractor is responsible for the evacuation of the body (paragraph (k)).
- If the Combatant Commander orders a mandatory evacuation, the government will provide assistance to the extent available. In the event of a non-mandatory evacuation order, the contractor shall maintain personnel on location sufficient to meet contractual obligations (paragraph (l)).
- When the contractor, to meet a contractual obligation, must accompany or travel to an area where a force is deployed, the contractor shall comply with instructions of the Combatant Commander relating to all transportation, logistical, and support requirements. If there is a conflict between the instructinos issued by the Combatant Commander and the terms of the contract, the instructions issued by the Combatant Commander take precedence. The contractor may submit a request for equitable adjustment for any additional effort required, or any loss of contractor-owned equipment, caused by such direction (paragraph (p)).
- When the contractor is accompanying the force and emergency action is required because of enemy or terrorist activity or natural disaster, and the contracting officer or the contracting officer's representative are not available, the ranking military commander may direct the contractor or contractor employee to take any action except engagement in armed conflict with an enemy force (paragraph (q)).
DOD particularly seeks comments on paragraphs (p) and (q) of the proposed clause, which permit the Combatant Commander to provide directions to the contractor.
FOR FURTHER INFORMATION CONTACT: Panoptic Enterprises at 703-451-5953 or by e-mail to Panoptic@FedGovContracts.com.
Copyright 2004 by Panoptic Enterprises. All Rights Reserved.
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