Panoptic Enterprises' FEDERAL CONTRACTS DISPATCH
DATE: May 5, 2005
SUBJECT: Defense Federal Acquisition Regulation Supplement (DFARS); Contractor Personnel Supporting a Force Deployed Outside the United States
SOURCE: Federal Register, May 5, 2005, Vol. 70, No. 86, page 23791
AGENCIES: Department of Defense (DOD)
ACTION: Final Rule
SYNOPSIS: This rule amends DFARS Subpart 225.74, retitled "Defense Contractors Outside the United States," and adds DFARS 252.225-7040, Contractor Personnel Supporting a Force Deployed Outside the United States, 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.
EDITOR'S NOTE: For more on the proposed rule, see the March 23, 2004, FEDERAL CONTRACTS DISPATCH “Defense Federal Acquisition Regulation Supplement (DFARS); Contractors Accompanying a Force Deployed.”
On February 11, 2003, DOD announced plans for conducting a "major transformation" of the DFARS (see the February 11, 2003, FEDERAL CONTRACTS DISPATCH "Defense Federal Acquisition Regulation Supplement (DFARS) Transformation"). The objective of the DFARS transformation is to improve the efficiency and effectiveness of the acquisition process while allowing the acquisition workforce the flexibility to innovate. The transformed DFARS will contain only requirements of law, DOD-wide policies, delegations of Federal Acquisition Regulation (FAR) authorities, deviations from FAR requirements, and policies and procedures that have a significant effect beyond the internal operating procedures of DOD or a significant cost or administrative impact on contractors or offerors. All mandatory and non-mandatory internal DOD procedures, non-mandatory guidance, and supplemental information will be contained in the DFARS companion document, the Procedures, Guidance, and Information (PGI), which is available at http://www.acq.osd.mil/dpap/dars/pgi/index.htm.
Additional information on the DFARS Transformation initiative is available at http://www.acq.osd.mil/dpap/dars/dfars/transformation/index.htm.
For more on the PGI, see the November 1, 2004, FEDERAL CONTRACTS DISPATCH "Defense Federal Acquisition Regulation Supplement (DFARS); Procedures, Guidance, and Information."
EFFECTIVE DATE: June 6, 2005.
FOR FURTHER INFORMATION CONTACT: Amy Williams, Defense Acquisition Regulations Council, OUSD (AT&L) DPAP (DAR), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062; 703-602-0328; fax: 703-602-0350.
SUPPLEMENTARY INFORMATION: This final rule amends DFARS Subpart 225.74 and adds DFARS 252.225-7040 to enable the uniform treatment of contractors that accompany a deployed force.
On March 23, 2004, DOD published a proposed rule, and 26 respondents submitted comments. As a result of those comments, DOD has adopted the proposed rule as final with changes. The following are the key provisions of DFARS Subpart 225.74 and DFARS 252.225-7040, with the differences between the proposed and final versions of the rule noted:
- DFARS 207.105, Contents of Written Acquisition Plans, is revised to add a requirement that DOD Instruction (DODI) 3020.37, Continuation of Essential DOD Contractor Services During Crises, be addressed in acquisition plans. This requirement is included in new paragraph (b)(19)(e), Special Considerations for Acquisition Planning for Crisis Situations Outside the United States. In addition, a cross-reference to PGI 207.105 is included. PGI 207.105 includes specific instructions on how to address such considerations. (This change is made to the final rule based on proposed rule comments.)
- DFARS 212.301, Solicitation Provisions and Contract Clauses for the Acquisition of Commercial Items, is amended to require the use of DFARS 252.225-7040 and DFARS 252.225-7043, Antiterrorism/Force Protection Policy for Defense Contractors Outside the United States, when prescribed in DFARS Subpart 225.74. DFARS 252.225-7043 is to be used in solicitations and contracts that include DFARS 252.225-7040. (EDITOR’S NOTE: The requirement to include DFARS 252.225-7043 is made to the final rule based on proposed rule comments. The introduction to the final rule gives the following reason for making this additional change: “Although the intent of FAR [Federal Acquisition Regulation] Part 12 [Acquisition of Commercial Items] 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.”)
- The text of DFARS 225.802-70, Contracts for Performance Outside the United States and Canada, is removed and relocated to the PGI. DFARS 225.802-70(a) is now PGI 225.802-70, Contracts for Performance Outside the United States, and DFARS 225.802-70(b) is now PGI 225.7401, General. All that remains of DFARS 225.802-70 is cross-references to PGI 225.802-70 and DFARS Subpart 225.74.
- DFARS Subpart 225.74, Antiterrorism/Force Protection Policy for Defense Contractors Outside the United States, is renamed "Defense Contractors Outside the United States," and completely revised:
- DFARS 225.7400, Scope of Subpart, is deleted.
- New DFARS 225.7401, General, references PGI 225.7401 and Army in Europe Regulation 715-9 for work performed in Germany (according to the rule, Regulation 715-9 is available at http://www.chrma.hqusareur.army.mil/docper/default.htm, but it is actually at http://www.per.hqusareur.army.mil/cpd/docper/default.htm), and includes a cross-reference to PGI 225.7401 for information on bilateral agreements and policy related to contractor employees in Japan or Korea. (The cross-reference for work performed in Japan or Korea was added to the final rule.
- New DFARS 225.7402, Contractor Personnel Supporting a Force Deployed Outside the United States (proposed title was “Contractors Accompanying a Force Deployed for Contingency, Humanitarian, Peacekeeping, or Combat Operations”), is completely rewritten. The proposed rule merely: (1) stated that contractors 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 (proposed DFARS 225.7402-1, Government Support of Contractor Personnel Accompanying a Force); and (2) required the inclusion of DFARS 252.225-7043 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 (proposed DFARS 225.7402-2, Contract Clause).
The final version of new DFARS 225.7402 consists of the following:
- DFARS 225.7402-1, Scope, which states that the 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.”
- DFARS 225.7402-2, Definitions, which states that the terms “combatant commander” and “theater of operations” are defined in DFARS 252.225-7040.
- DFARS 225.7402-3, Government Support, which cross-references PGI 225.7402-3(a) as listing the types of government support that may be authorized or required for contractor personnel performing in the theater of operations. The list in PGI 225.7402-3(a) includes “(1) deployment in-processing centers; (2) training; (3) transportation to operation area; (4) transportation within operation area; (5) physical security; (6) force protection; (7) organizational clothing and individual equipment; (8) emergency medical care; (9) mess operations; (10) quarters; (11) postal service; (12) phone service; (13) emergency notification; (14) laundry; and (15) religious services.”
DFARS 225.7402-3 goes on to require the contracting officer to ensure that the contract contains valid terms, specify in the contract whether medical or dental care is authorized beyond that specified in DFARS 252.225-7040, specify if the contractor is to reimburse the government for medical treatment or transportation, and specify the support that will be authorized or required. Finally, it requires that contractor personnel have a “letter of authorization” (LOA) issued by the contracting officer to process through a deployment center or travel to and within the theater of operations. This LOA will identify “any additional authorizations, privileges, or government support that the contractor personnel are entitled to under the contract.” A sample LOA is in PGI 225.7402-3.
- DFARS 225.7402-4, Contract Clauses, which requires that DFARS 252.225-7040 be used in situations specified in DFARS 225.7402-1. Also, it includes a cross-reference to PGI 225.7402-4(b) for guidance on clauses to consider when using DFARS 252.225-7040. Those clauses are: FAR 52.228-3, Workers’ Compensation Insurance (Defense Base Act); FAR 52.228-4, Workers’ Compensation and War Hazard Insurance Overseas; FAR 52.228-7, Insurance -- Liability to Third Persons; and FAR 52.251-1, Government Supply Sources, and DFARS 252.251-7000, Ordering from Government Supply Sources.
- New DFARS 225.7403, Antiterrorism/Force Protection, consists of the following:
- DFARS 225.7403-1, General, which is the old DFARS 225.4301, General. However, the list of offices providing information and guidance on DOD antiterrorism/force protection policy is replaced with a cross-reference to PGI 225.7403-1, General.
- DFARS 225.7403-2, Contract Clause (the old DFARS 225.7403, Contract Clause), which specifies when DFARS 252.225-7043 should and should not be used.
- DFARS 252.225-7040, Contractor Personnel Supporting a Force Deployed Outside the United States (retitled from the proposed “Contractors Accompanying a Force Deployed for Contingency, Humanitarian, Peacekeeping, or Combat Operations”), is added. It specifies the following:
- Paragraph (a) defines the terms “combatant commander” and “theater of operations.” The terms “contingency operation” and “humanitarian or peacekeeping operations” are deleted from the final rule because their definitions were added to the FAR by Federal Acquisition Circular (FAC) 01-24 (see the June 18, 2004, FEDERAL CONTRACTS DISPATCH “Federal Acquisition Circular (FAC) 2001-24, Miscellaneous Amendments,” Item (2)).
The definition of “combatant commander” no longer includes subordinate commanders given authority by the combatant commander. The introduction to the final rule states, “It is still possible for the combatant commander to delegate authority to a subordinate commander. According to FAR 1.108(b) [FAR Conventions], 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.”
- Paragraph (b) states, “(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.” (The first sentence in subparagraph (b)(2) is changed from “Contract performance in support of such forces is inherently dangerous,” and paragraph (b)(3) is added to the final rule.)
- Paragraph (c) specifies 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.” It goes on to specify the medical treatment that contractor personnel 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”), and states that the contractor is responsible for all other support not specified in the contract (the proposed paragraph (c) stated that “the contractor is responsible for all support required for contractor personnel engaged in this contract.”).
- Paragraph (d) requires the contractor to “comply with, and shall ensure that its employees supporting a force deployed outside the United States...are familiar with and comply with all applicable (1) United States, host country, and third country national laws [changed from “local 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.” (The requirement to ensure compliance with “the Uniform Code of Military Justice where applicable” is deleted from the final rule.)
- Paragraph (e) requires the contractor to shall ensure that all security and background checks are completed; minimum medical screening requirements are met and all required immunizations have been received (“the government will provide, at no cost to the contractor, any theater-specific immunizations and/or medications not available to the general public” is added to the final rule); 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) in the proposed rule).
- Paragraph (f) requires deploying contractor personnel to process through a Joint Reception Center upon arrival at the deployed location (this requirement is added to the final rule).
- Paragraph (g) requires the contractor to establish and maintain a current list of all contractor personnel that deploy or provide support in the theater of operations (paragraph (f) in the proposed rule).
- Paragraph (h) authorizes the contracting officer to direct the contractor to remove and replace any contractor personnel who jeopardize or interfere with mission accomplishment. Also, it requires the contractor to have a plan showing how the contractor would replace employees who are unavailable for deployment or who need to be replaced during deployment (paragraph (e) in the proposed rule).
- Paragraph (i) specifies that contractor personnel 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) in the proposed rule). (The sentence “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” is added to the final rule).
- Paragraph (j) authorizes the contractor to request, through the contracting officer to the combatant commander, that its personnel be authorized to carry weapons. The combatant commander decides whether to authorize the carrying of weapons and what weapons will be allowed. The contractor is responsible for ensuring that its personnel who are authorized to carry weapons are trained, are not barred from possession of a firearm, and adhere to all guidance and orders issued by the combatant commander. (Proposed paragraph (i) would have prohibited contractor personnel from possessing privately-owned firearms, but would have authorized the combatant commander to authorize the issuance of weapons and ammunition to the contractor for specific employees.)
- Paragraph (k) requires that contractor personnel have the required licenses to operate all vehicles or equipment necessary to perform the contract in the theater of operations (paragraph (g)(3) in the proposed rule).
- Paragraph (l) requires the contractor to coordinate the local purchase of scarce goods and services with any organization established by the combatant commander for the acquisition of such goods and services (paragraph (o) of the proposed rule). (The proposed rule required the contractor to obtain approval of that organization before acquiring the scarce items).
- Paragraph (m) specifies that if the combatant commander orders a mandatory evacuation, the government will provide assistance to the extent available, to United States and third country national contractor personnel. In the event of a non-mandatory evacuation order, the contractor is required to maintain personnel on location sufficient to meet contractual obligations (paragraph (l) of the proposed rule).
- Paragraph (n) states that contractors are responsible for notification of next-of-kin when an employee dies, is injured, is missing, or is captured (paragraph (j) of the proposed rule). (The proposed rule required “in-person” notification, but this requirement has been deleted from the final rule.) In addition, the government will assist in personnel recovery actions in accordance with DOD Directive 2310.2, Personnel Recovery (this is added to the final rule).
- Paragraph (o) states that “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.” (This is added to the final rule. Paragraph (k) of the proposed rule specified that the contractor would be responsible for the evacuation of the employee’s body.)
- Paragraph (p) authorizes the contracting officer to make changes authorized by the “Changes” clause in the contract, and to government-furnished facilities, equipment, material, services, or site. (The proposed rule would have required the contractor to comply with instructions of the combatant commander, and if there was a conflict between the combatant commander’s instructions and the contract, the instructions would have taken precedence. However, this proposed language could have forced the contractor to comply with out-of-scope changes, could be construed as requiring personal services contracts, could violate the Competition in Contracting Act by leading to unauthorized commitments, and could cause violations of the Anti-Deficiency Act where the emergency exception may not apply. So the proposed language was deleted.)
- Paragraph (q) requires the contractor to include DFARS 252.225-7040 in all subcontracts that require subcontractor personnel to be available to deploy with or otherwise provide support in the theater of operations (paragraph (r) in the proposed rule).
In addition, the following provisions in the proposed rule were deleted from the final version of DFARS 252.225-7040:
- In proposed paragraph (m), the requirement regarding contractor responsibility for issues dealing with exclusions in an employee’s personal insurance policy; and
- Paragraph (q), which would have authorized the ranking military commander to direct to contractor or contractor employee to take any action except engagement in armed conflict with an enemy force.
FOR FURTHER INFORMATION CONTACT: Panoptic Enterprises at 703-451-5953.
Copyright 2005 by Panoptic Enterprises. All Rights Reserved.
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