[Federal Register: February 28, 2008 (Volume 73, Number 40)] [Rules and Regulations] [Page 10943-10959] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr28fe08-17] ----------------------------------------------------------------------- DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Parts 2, 7, 12, 25 and 52 [FAC 2005-24; FAR Case 2005-011; Item I; Docket 2008-0001; Sequence 1] RIN 9000-AK42 Federal Acquisition Regulation; FAR Case 2005-011, Contractor Personnel in a Designated Operational Area or Supporting a Diplomatic or Consular Mission AGENCIES: Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) have agreed on a final rule amending the Federal Acquisition Regulation (FAR) in order to address the issues of contractor personnel that are providing support to the mission of the United States Government in a designated operational area or supporting a diplomatic or consular mission outside the United States, but are not authorized to accompany the U.S. Armed Forces. DATES: Effective Date: March 31, 2008. FOR FURTHER INFORMATION CONTACT: Mr. Ernest Woodson, Procurement Analyst, at (202) 501-3775 for clarification of content. For information pertaining to status or publication schedules, contact the FAR Secretariat at (202) 501-4755. Please cite FAC 2005-24, FAR case 2005-011. SUPPLEMENTARY INFORMATION: A. Background This rule creates a new FAR Subpart 25.3 to address issues relating to contracts performed outside the United States, including new section 25.301, Contractor personnel in a designated operational area or supporting a diplomatic or consular mission outside the United States. The rule also adds a new clause entitled ``Contractor Personnel in a Designated Operational Area or Supporting a Diplomatic or Consular Mission Outside the United States.'' This clause will not apply to contractor personnel authorized to accompany the U.S. Armed Forces because they are covered by the Defense Federal Acquisition Regulations Supplement (DFARS) 225.7402 and the clause at 252.225-7040. DoD, GSA, and NASA published a proposed rule in the Federal Register at 71 FR 40681, July 18, 2006, under the case title ``Contractor Personnel in a Theater of Operations or at a Diplomatic or Consular Mission.'' The public comment period ended on September 18, 2006. Because the FAR proposed rule and the DFARS interim rule under DFARS Case 2005-D013 are similar in many respects, the Councils reviewed the comments on both rules together, except for those issues that applied only to the Department of Defense. The Councils received 6 comments on the FAR rule and 10 comments on the DFARS rule. The most widespread concern of respondents centered on the paragraph in the clause that sets forth the law of war principles regarding use of deadly force by contractors. There was strong objection to the perception that the U.S. Government is now hiring contractors as mercenaries. These comments on the use of deadly force have been divided into two categories: The right to self-defense, and private security contractors. 1. Right to Self-Defense a. Distinction Between Self-Defense and Combat Operations (Relates to FAR 52.225-19(B)(3)(I)) Comment: One respondent states that there is an inherently vague line between what constitutes ``defense'' and ``attack'' which is plainly crossed when the terms are applied in asymmetric warfare. It is clear, they say, that contractors employing self-defense measures would have to undertake a wide array of combat activities to assure their safety. They refer to these contracts as ``Self Defense Contracts.'' Response: The FAR language recognizes that individuals have an inherent right to self-defense. The language does not require self- defense, just authorizes it when necessary. It does not authorize preemptive measures. b. Whether the Right of Self-Defense Should Be Modified to ``Personal'' Self-Defense? Comment: One respondent recommends insertion of the word ``personal'' before ``self-defense'' in the DFARS rule, stating that this will ``clarify that civilians accompanying the force are authorized to use deadly force only in defense of themselves, rather than the broader concept of unit self-defense or preemptive self- defense.'' Response: The Councils concluded that this is not a problem in the FAR, [[Page 10944]] because the contractors subject to the FAR rule are not authorized to accompany the force, and ``unit self-defense'' and ``pre-emptive self- defense'' are not civilian concepts. c. Whether the Right of Self-Defense Should Be Extended to Defense Against Common Criminals? Comment: One respondent states that, ``since this rule will apply in innumerable asymmetrical environments'', the phrase ``against enemy armed forces'', should be deleted, asserting that the right of self- defense should ``extend beyond enemy armed forces since such defensive actions may be needed as protection against common criminals.'' Response: The Councils concur with this recommendation that the phrase ``against enemy armed forces'' should be deleted from paragraph 52.225-19(b)(3)(i) of the FAR rule, since there are legitimate situations which may also require a reasonable exercise of self-defense against other than enemy armed forces, e.g., defense against common criminals, terrorists, etc. When facing an attacker, it will often be impossible for the contractor to tell whether the attacker is technically an ``enemy armed force'' and probably irrelevant to the decision whether to use deadly force (although it may not be irrelevant to the subsequent consequences, which are outside the control of the contractor and the regulation). The Councils have also added a reference to the requirements regarding use of force as specified in paragraph 52.225-19(i)(3) of the clause, to remind the contractor of the other limitations on the use of force. 2. Role of Private Security Contractors (52.225-19(B)(3)(Ii)) a. Whether a Separate Category for Private Security Contractors Is Necessary? Comment: One respondent states that there is no need for private security contractor as a separate category if private security contractors (like other contractors) can only use deadly force in self- defense. Response: While the right to self-defense applies to all contractors, the rule recognizes that private security contractors have been given a mission to protect other assets/persons and so it is important that the rule reflect the broader authority of private security contractors in regard to use of deadly force, consistent with the terms and conditions of the contract. b. Hiring Private Security Contractors as Mercenaries Violates Constitution, Law, Regulations, Policy, and American Core Values Comment: Many respondents had similar comments to the effect that, by allowing contractors to assume combat roles, the rule allows mercenaries in violation of the Constitution and laws of the United States, core American values, and insulting our soldiers. One law specifically identified was 5 U.S.C. Sec. 3108, ``Employment of detective agencies; restrictions.'' (The so-called Anti-Pinkerton Act.) Also some see this as violating DoD Manpower Mix Criteria and the Federal Activities Inventory Reform (FAIR) Act of 1998, which preclude contracting out core inherently governmental functions, especially combat functions. Response: While not disputing the many prohibitions against the use of mercenaries, private security contractors are not mercenaries. Private security contractors are not part of the armed forces. The Government does not contract out combat functions. The United States Government has the authority to hire security guards worldwide. The protection of property and persons is not an inherently governmental function (see FAR 7.503(d)(19)). In Brian X. Scott, Comp. Gen. Dec. B-298370 (Aug. 18, 2006), the Comptroller General of the United States concluded that solicitations for security services in and around Iraq violated neither the Anti- Pinkerton Act, nor DoD policies regarding contractor personnel because the services required are not ``quasi-military armed forces'' activities. The Comptroller General also relied on the language of the interim DFARS rule which prohibits contractor personnel from participating in direct combat activities, as well as the provisions of DoDI 3020.41, which makes it the responsibility of the combatant commander to ensure that private security contract mission statements do not authorize the performance of any inherently Governmental military function. The Comptroller General concluded that ``* * * the services sought under the solicitations appear to comport with the DoD policies and regulations which state that security contractors are not allowed to conduct direct combat activities or offensive operations.'' c. Whether the Standard for Use of Deadly Force Should Be Modified to One of ``Reasonableness'' Comment: Paragraph 52.225-19(b)(3)(ii) of the FAR clause uses the language ``only when necessary'' as the standard when describing the use of deadly force by security contractors. One respondent notes that a ``reasonably appears necessary'' standard is used by the Department of Defense when its personnel perform security functions (see DoDD 5210.56, Use of Deadly Force and the Carrying of Firearms by DoD Personnel Engaged in Law Enforcement and Security Duties, at E2.1.2.3.1). The respondent states that ``While everyone would agree that ``unnecessary'' deadly force is to be avoided, the difference between ``unnecessary'' and ``only when necessary'' remains wide and fails to recognize the ``reasonably appears necessary'' standard that is critical to split-second discretionary decisions, particularly in a war zone.'' Response: The Councils concur with the suggested revision to the wording of paragraph 52.225-19(b)(3)(ii). Since this is the standard applied by the DoD for DoD personnel engaged in law enforcement and security duties, then it is reasonable to apply that standard to private security personnel. d. Whether Protected Assets/Persons for Private Security Contractors Should Be Limited to Non-Military Objectives Comment: One respondent says the rule should be clarified to limit private security contractor personnel to protecting assets/persons that are non-military objectives. This omission from the Interim Rule seems to conflict with the Army Field Manual No. 3-100.21, that prohibits the use of contractors in a force protection role. One respondent is also concerned about how to craft statements of work for private security contractors that do not assign to contractors inherently governmental functions. Response: It is not possible to tell in advance of an actual conflict what may become a military objective. Almost anything worth protecting could become a military target in wartime. As already stated in paragraph A.2.b. of this notice, the Government is not contracting out combat functions. The United States Government has the authority to hire security guards worldwide. The protection of property and persons is not an inherently Governmental function (see FAR 7.503(d)(19)). e. Use of the Term ``Mission Statement'' Comments: Paragraph 52.225-19(b)(3)(ii) of the FAR clause authorizes private security contractor personnel 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.'' Several respondents felt that [[Page 10945]] the use of the term ``mission statement'' in that sentence caused confusion and requested clarification of its meaning. Several respondents believed that definition of ``mission statement'' is needed, due to the possibility of different interpretations. Not all contracts for security services will contain a ``mission statement,'' at least using that terminology. Statements of work may contain sections entitled ``objectives,'' ``purpose,'' or ``scope of work,'' which may or may not contain the equivalent of a mission statement. The need to deploy security personnel quickly could ``result in a `mission statement' (or its equivalent) that may not be as precise as desired and, therefore, ill-suited to serve as part of a standard for when deadly force is authorized.'' One respondent was also concerned about the need for clear provisions establishing who may prepare a mission statement and the Combatant Commander's role in the process. The respondent further noted that the ``Background'' section of the FAR rule contained the following supplemental information concerning the Combatant Commander's role: ``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.'' However, the respondent stressed that, with civilian agencies that have ``non-DoD'' contracts, ``the Combatant Commander will have no involvement and the rule does not provide any mechanism for the non-defense agencies to obtain that determination.'' Respondents also requested clarification whether or not subcontractors would be considered private security contractors, or whether that the term ``private security contractor'' was limited to contractors that have ``a contract directly with the Government''. One respondent commented that ``there is no guidance as to who would qualify as ``private security contractor personnel'', creating uncertainty regarding whether private security companies retained by a prime contractor would be covered if the prime contractor drafted a mission statement for its private security subcontractor.'' Response: The Councils agree that the use of the phrase ``consistent with the mission statement contained in their contract'', in paragraph 52.225-19(b)(3)(ii) of the FAR clause might cause some confusion. The Councils have replaced this phrase with ``consistent with the terms and conditions of the contract.'' ``Terms and conditions'' covers possible placement anywhere in the contract. For contractors supporting a diplomatic or consular mission, it will be the chief of mission who authorizes the use of weapons. When authorizing the use of weapons, the chief of mission will review and approve the use to which the weapons will be put. The Councils do not consider that any clarification with regard to subcontractors is necessary. When a clause flows down to subcontractors, the terms are changed appropriately to reflect the relationship of the parties. There is nothing in the proposed rule that indicates that private security contractors cannot be subcontractors. f. Authority of Combatant Commander/Chief of Mission to ``Create Missions'' Comment: One respondent asserts that the proposed FAR rule delegates extensive authority to combatant commanders to direct contractor actions under both support and security contracts. They contend that granting such ``nearly unlimited'' authority to combatant commanders to ``create missions'' is inconsistent with laws and regulations which convey such authority to contracting officers and serves to undermine their authority. Response: The combatant commander/chief of mission are not authorized to ``create missions'' for private security contractors. The contractors must perform in accordance with the terms and conditions of the contract. The authority of the combatant commander/chief of mission arises through the fact that they must approve when any contractors request authority to carry weapons, and the combatant commander/chief of mission must evaluate whether the planned use of such weapons is appropriate. g. Approval of Private Security Contractors Comment: One respondent questioned whether there will be a vetting process and list of approved Private Security Contractors for contractors or their subcontractors to acquire services from? They also wanted to know about any requirements/rules when a contractor subcontracts with a local or third-country firm as private security contractor. Response: With regard to vetting for private security contractors, FAR 25.301-2 provides that contractors are responsible for providing their own security support. Additionally, 52.225-19(c) echoes 25.301-2 and 52.225-19(e)(2) requires the contractor to insure that all applicable specified security and backgrounds checks are completed before contractor personnel begin performance in the designated operational area or with a diplomatic or consular mission. The Contractor assumes full responsibility for the selection and performance of its subcontractors. However, the Government may reserve the right to approve subcontracts. h. Definition of ``Private Security Contractor'' Comment: Several respondents requested a definition of Private Security Contractor. Response: The Councils considered that a private security contractor is a contractor that has been hired to provide security, either by the Government, or as a subcontractor. In some circumstances a contractor, whose primary function is not security, will directly hire a few personnel to provide security, rather than subcontracting to a private security contractor. The authority for use of deadly force ultimately rests with the individuals who are providing the security, whether as direct hires or as employees of a subcontractor. Therefore, the Councils have revised the language in paragraph 52.225-19(b)(3)(ii) of the clause from ``Private security contractors * * *'' to read ``Contractor personnel performing security functions * * *'' 3. Consequences of Inappropriate Use of Force (52.225-19(b)(3)(iii)) a. Loss of ``Law of War'' Protection From Direct Attack Comment: Paragraph (b)(3)(iii) in the proposed rule stated that ``Civilians lose their law of war protection from direct attack if and for such time as they take a direct part in the hostilities.'' This statement raised many questions as to what the terms mean. One respondent considered this to be a correct statement under the international law of war, but that it may call into questions our foundation for the Global War on Terrorism and targeting ``unlawful combatants'' when they are not taking a direct part in hostilities. Response: The Councils decided to delete this paragraph. Paragraph (b)(3)(i) sets forth the right to self-defense. Paragraph (b)(3)(ii) sets forth a limited right for some contractor personnel to protect assets/persons. Adding paragraph (b)(3)(iii) does not provide any useful information to contractors on what they are authorized to do. Discussion of the theories of law of war should be handled in law of war [[Page 10946]] training prior to deployment rather than in the clause. b. Consequences Other Than ``Law of War'' Consequences Comment: Several respondents state that as the interim DFARS rule is currently drafted, the notice to contractors relating to the personal and legal impact of directly participating in hostilities is incomplete. They requested inclusion of language from the DoDI 3020.41 relating to possible criminal and civil liability for inappropriate use of force. Response: Although the comment specifically related to the DFARS rule, and inclusion of the language from the DoDI is not appropriate, the Councils have added to paragraph 52.225-19(b)(3)(i) of the clause a cautionary reference to paragraph 52.225-19(i)(3) of the clause, regarding use of weapons. 4. Contractors Are Not Active Duty (52.225-19(b)(4)) Comment: One respondent was concerned about paragraph (b)(4) in the clause. This paragraph says, ``Service performed by contractor personnel subject to this clause is not active duty or service under 38 U.S.C. 106 Note.'' The respondent points out that the Note under Section 106 in Title 38 of the annotated U.S. Code explains that the Secretary of Defense is to determine what constitutes ``active duty or service'' under this statute for Women's Air Forces Service Pilots who were attached to the Army Air Corps during World War II and persons in similarly situated groups who rendered services in a capacity considered civilian employment or contractual service. The respondent asserts the determination can only be made retrospectively. Response: The clause correctly states the terms of service for Defense and non-Defense contractors. Contractors should hold no expectation under this clause that their service will qualify as ``active duty or service.'' The Note under 38 U.S.C. 106 requires determinations for any applicant group be based on (1) regulations prescribed by the Secretary, and (2) a full review of the historical records and any other evidence pertaining to the service of any such group. In promulgating the DFARS, the Department of Defense issued a regulation prescribed by the Secretary. This Defense regulation establishes the historical record that shall be used in future review of the historical evidence surrounding a contractor's service under this clause. Defense policy is that contractors operating under this clause shall not be attached to the armed forces in a way similar to the Women's Air Forces Service Pilots of World War II. Contractors today are not being called upon to obligate themselves in the service of the country in the same way as the Women's Air Forces Service Pilots or any of the other groups listed in Section 106. The FAR follows the Defense regulation in this regard, since ``active duty or service'' is a matter uniquely determined by the Secretary of Defense. 5. Weapons (25.301-3 and 52.225-19(i)) a. Nature of the Authorized Weapons Comment: One respondent claims there is no reasonable limitation on the nature of the ``weapons'' that a contractor is to handle, whether as a ``Self Defense Contractor'' or a Private Security Contractor. The range could include anything from small arms to major weapons systems. Response: There are too many different situations for individual agencies to be able to prescribe specific weapons for each circumstance. However, it is unlikely a contractor would attempt to bring a major weapon system on the battlefield, or that the combatant commander/chief of mission would approve/authorize such weapons. b. Combatant Commander/Chief of Mission--Rules on the Use of Force Comment: One respondent believes there is no reasonable means by which a combatant commander/chief of mission can generate rules regarding the use of force by contractors. They further claim that the rules have to be related to doctrine, dogma, rules of engagement, etc. and these are formulated well above the combatant commander. Since the rules may be different, they assert contractor personnel would be subject to a range of serious risks and liabilities. Response: It is the authority of a combatant commander to perform those functions of command over assigned forces involving: Organizing and employing commands and forces; assigning tasks; designating objectives; and giving authoritative direction over all aspects of military operations, joint training, and logistics necessary to accomplish the missions assigned. Operational control is inherent in combatant command (command authority) and therefore, provides full authority to organize and employ commands and forces as the combatant commander considers necessary to accomplish assigned missions. The combatant commander also establishes rules of engagement in the designated operational area, and does take into consideration many influences such as doctrine. The combatant commander will also seek advice from experts in areas such as legal and security, prior to making such decisions. Since the rules regarding contractor authorization to carry firearms will vary according to the phase of the conflict, there would be no person other than the combatant commander more informed or able to make the decision on whether a contractor can carry weapons and the rules for use of such weapons. It is the authority of the chief of mission to establish the rules for use of weapons by contractors supporting a diplomatic or consular mission. c. Law of Armed Conflict (LOAC) Issues Comment: One respondent states the notion that the Government assumes no responsibility whatsoever for the use of weapons on a battlefield by a contractor authorized and required to use such weapons as the practical effect of the contract requirements, makes no sense and is certain to cause contractual Law of Armed Conflict issues and other problems. Response: There have been no issues on the Law of Armed Conflict for contractors carrying weapons because in the current conflicts there are no enemy armed forces that are lawful combatants and no enemy government to provide them prisoner of war status and protections if captured. The Councils also note that at the beginning of the current conflicts contractors were not allowed to carry weapons at all. During the post-major operations phase, civilian contractors that have been brought in for a variety of security operations are authorized (and required) to provide their own weapons. The obvious safety/security connected with carrying a weapon far outweigh any theoretical issues. d. Liability for Use of Weapons Comment: Several respondents express concern that the Government (52.225-19(i)) authorizes (and sometimes requires) contractor personnel to carry weapons but that it places sole liability for the use of weapons on contractors and contractor personnel, ``even if the contractor was acting in strict accordance with the contract statement of work or under specific instructions from the contracting officer, the Chief of Mission, or the Combatant Commander.'' One respondent considers this statement regarding contractor liability for use of weapons to be inconsistent with prior regulatory history, citing the statement that ``the risk associated with inherently Governmental functions will [[Page 10947]] remain with the Government.'' (70 FR 23792, May 5, 2005.) Response: While a contractor may be authorized to carry and use weapons, the contractor remains responsible for the performance and conduct of its personnel. A contractor has discretion in seeking authority for any of its employees to carry and use a weapon. Each contractor is responsible for ensuring its personnel who are authorized to carry weapons are adequately trained to carry and use them safely, adhere to the rules on the use of force, comply with law, agreements, and are not barred from possession of a firearm. Inappropriate use of force could subject a contractor, its subcontractor, or employees to prosecution or civil liability under the laws of the United States and the host nation. The Government cannot indemnify a contractor and its personnel against claims for damages or injury or grant immunity from prosecution associated with the use of weapons. With regard to the statement regarding inherently governmental functions, this rule does not authorize contractors to carry out any inherently governmental functions. 6. Risk/Liability to Third Parties/Indemnification (52.225-19(b)(2)) Comment: Many respondents expressed concern that the proposed FAR rule shifts to contractors all risks associated with performing the contract and may lead courts to deny contractors certain defenses in tort litigation. The respondents cited decisions by state and federal courts arising out of injuries or deaths to third parties, including military members and civilians. Generally, the courts absolved contractors of liability to third parties where the Government carried ultimate responsibility for the operation. Some respondents are concerned that the acceptance of risk may preclude grants of indemnification and that the rule could adversely affect indemnification that would otherwise be available. FAR clause 52.228-7 provides limited indemnification, but provides that contractors shall not be reimbursed for liabilities for which the contractor is otherwise responsible under the express terms of any clause specified in the Schedule or elsewhere in the contract. One respondent states that the provisions stating that the contractor accepts certain risks and liabilities could also be the basis to deny pre- or post-award request for indemnification under Public Law 85-804. One respondent also cited a decision by a Defense Department Contract Appeals Board in which the Board declined a contractor's request for indemnification under Public Law 85-804 because, according to the Board, contractors should not be able to ``deliberately enter into contractual arrangements with full knowledge that a risk is involved'' and yet propose unrealistically low prices on the hopes they may later gain indemnification. Therefore, the rule could adversely affect indemnification that would otherwise be available. The respondents recommend that the United States should either identify, quantify, and accept all the risk or should insert language that would immunize contractors from tort liability. Specifically, several respondents recommend adding a sentence saying, ``Notwithstanding any other clause in this contract, nothing in this clause should be interpreted to affect any defense or immunity that may be available to the contractor in connection with third-party claims, or to enlarge or diminish any indemnification a contractor may have under this contract or as may be available under the law.'' There was also concern that by accepting all risks of performance, contractors would not be able to obtain workers compensation insurance or reimbursement under the Defense Base Act. One respondent suggests that the final rule should be revised to modify the contractor's acceptance of risk as follows: ``Except as otherwise provided in the contract, the Contractor accepts the risks associated with required contract performance in such operations.'' Response: The Councils believe the rule adequately allocates risks, allows for equitable adjustments, and permits contractors to defend against potential third party claims. Contractors are in the best position to plan and perform their duties in ways that avoid injuring third parties. Contractors are equally or more responsible to research host nation laws and proposed operating environments and to negotiate and price the terms of each contract effectively. Accordingly, the clause retains the current rule of law holding contractors accountable for the negligent or willful actions of their employees, officers and subcontractors. This is consistent with existing laws and rules, including FAR clause 52.228-7, Insurance-Liability to Third Parties, and FAR Part 50, Extraordinary Contractual Actions (Indemnification), as well as the court and board decisions cited in the comments. The current law regarding the Government Contractor Defense (e.g., the line of cases following Boyle v. United Technologies, 487 U.S. 500, 108 S. Ct. 2510 (1988)) extends to manufacturers immunity when the Government prepares or approves relatively precise design or production specifications after making sovereign decisions balancing known risks against Government budgets and other factors in control of the Government. This rule covers service contracts, not manufacturing, and it makes no changes to existing rules regarding liability. The public policy rationale behind Boyle does not apply when a performance-based statement of work is used in a services contract because the Government does not, in fact, exercise specific control over the actions and decisions of the contractor, its employees or subcontractors. Asking a contractor to ensure its employees comply with host nation law and other authorities does not amount to the precise control that would be requisite to shift away from a contractor accountability for its own actions. Contractors will still be able to defend themselves when injuries to third parties are caused by the actions or decisions of the Government, its officers and employees. To the extent that contractors are currently seeking to avoid accountability to third parties for their own actions by raising defenses based on the sovereignty of the United States, this clause should not send a signal that would invite courts to shift the risk of loss to innocent injured parties. The recommended language would open the door to attempts to shift to innocent victims all the burden of their injuries and would encourage contractors to avoid proper precautions needed to prevent injury to others. The language in the clause is intended to encourage contractors to properly assess the risks involved and take proper precautions. However, to preclude the misunderstanding that asking the contractor to ``accept all risks'' is an attempt to ``shift to the contractor all risk of performance without regard to specific provisions in the contract,'' the Councils have accepted the suggestion to modify the requirement with the lead-in phrase: ``Except as otherwise provided in the contract,''. 7. Terms Defined (2.1 and 52.225-19(a)) a. Theater of Operations Comment: One respondent states that the term ``theater of operations'' is unwarranted by any legitimate purposes suggested by the interim rule.'' This is a term which if defined at all, should rest in the hands of the President or the Secretary of Defense.'' [[Page 10948]] Response: There was a legitimate purpose for the use of this term because it defined the geographic area in which the clause was applicable. The combatant commander has the authority to define a ``theater of operations'' within the geographic area for which the combatant commander is responsible. However, after discussion with military experts and review of the Joint Publication 3-0 Chapter 5, the Councils have determined that the term ``theater of operations'' is too restrictive, that the appropriate term is ``designated operational area,'' which includes theater of operations, but also would include such descriptors as theater of war, joint operations area, amphibious objective area, joint special operations area, and area of operations. The Councils have added a definition of ``designated operational area'' at FAR Part 2 and in the clause, and replaced the term ``theater of operations'' throughout the text and clause. b. Contingency Operations and Humanitarian or Peacekeeping Operations Comment: One respondent is concerned that the rule defines the terms ``contingency operation'' and ``humanitarian or peacekeeping operation'' in military terms and does not address the civilian ``humanitarian, contingency, disaster assistance, and developmental assistance'' authorities that govern the United States Agency for International Development (USAID) and other civilian agency international programs. Response: The definitions of ``contingency operations'' and ``humanitarian or peacekeeping operations'' are defined in military terms, as defined at 10 U.S.C. 101(a)(13) and 10 U.S.C. 2302(8) and 41 U.S.C. 259(d), because the purpose of this rule and clause as set forth in the scope at 25.301-1(a) is intended to be applied during military operations. To make it more clear that the rule is not referring to the type of contingency, humanitarian, or peacekeeping operations in which USAID is involved, the term ``military'' has been included in the definition of ``designated operational area.'' c. Other Military Operations Comment: Several respondents note that the term ``other military operations'' is very broadly defined. One respondent states that it is ``either over expansive, or unnecessary, because it is so inclusive as to suggest nearly any type of military engagement likely to be carried out in the first half of the current century.'' Response: The Councils concur that this definition was very broad, because it was intended to cover every type of military operation. However, the Councils have deleted this definition, because the Councils have agreed to limit application of this rule and clause to ``other military operations'' only when so designated by the Combatant Commander. Since the clause will only be applied to other military operations when designated by the Combatant Commander, it is unnecessary to define the term in the text and clause. d. At a Diplomatic or Consular Mission Comment: One respondent states that the term ``at a diplomatic or consular mission'' connotes the physical location of the embassy or consulate, which seems more limited than the FAR definition contemplates. A more descriptive phrase for the geographical location where the FAR clause should apply would be helpful. One respondent also objects to the statutory reference in the definition. Response: The Councils have changed the final rule to make the wording clearer, with less emphasis on location and more emphasis on the performance under the contract. The Councils have also deleted the statutory reference. Contracting officers know when they are subject to the direction of a Chief of Mission. e. Chief of Mission Comment: One respondent does not object to the definition of ``Chief of Mission.'' However, the respondent requests a reasonable and consistent means for identifying the individual who occupies the position. Another respondent requests that the contract clause should include a blank to be completed to identify the chief of mission. This respondent also requests explanation of the distinction between an ambassador at an embassy and a chief of mission at a diplomatic or consular mission. Response: The Chief of Mission can be identified through the Department of State. The Councils do not consider it advisable to put that information in the contract because it changes frequently. Although the ambassador may be the chief of mission, many diplomatic missions do not have an ambassador. As stated in the definition, the Chief of Mission is whoever is in charge of a diplomatic mission, as designated by the Secretary of State. f. Location of Definitions Comment: One respondent stated that all of the definitions should be included in either FAR 2.101 or 25.302-2 and in the clause, or provided only in the clause. ``At a diplomatic or consular mission'' and ``theater of operations'' are defined in the clause but not at 25.302 (now 25.301). Response: In the proposed rule, ``at a diplomatic or consular mission'' and ``theater of operations'' are defined in FAR 2.101 rather than at 25.301, because the terms are used in more than one part of the FAR. In the final rule, the definition of ``designated operational area'' has been substituted for the definition of ``theater of operations'' and the definition of ``supporting a diplomatic or consular mission'' has replaced the definition of ``at a diplomatic or consular mission''. In addition, the definitions of ``chief of missions'' and ``combatant commander'' have also been moved to Part 2, because those terms are used in the definitions of ``designated operational area'' and ``supporting a diplomatic or consular mission,'' respectively. 8. Terms Not Defined a. Enemy Armed Forces Comment: One respondent objects to the lack of definition of the term ``enemy armed forces,'' stating that this term is critical to the contractor in determining and pricing its obligations under a solicitation or resulting contract. Response: The FAR rule has been revised to delete use of the term ``enemy armed forces.'' b. ``Law of War,'' ``Law of War Protections,'' and ``Take Direct Part in Hostilities'' Comment: One respondent states that there are several terms of art that are undefined in the FAR rule that likely cannot be defined satisfactorily in the FAR. The respondent states that understanding the concepts underlying these terms is crucial to preparing statements of work for and administering contracts that will send contractor employees into hostile environments. Therefore, the FAR text should include some discussion of them and the need for contracting personnel to seek advice when dealing with these terms. Such terms include ``law of war,'' ``law of war protections,'' and ``take a direct part in hostilities;'' the latter is perhaps the most important phrase for private security contractors and those drafting the statements of work or mission statements. The difficulty of understanding the concept ``take a direct part in hostilities'' is illustrated by the fact that the International Team of the Red Cross has held three conferences for the purpose of defining [[Page 10949]] this term without consensus and that the DoDI 3020.41 provides explicit instructions about the need for legal counsel's advice to sufficiently address the many aspects of direct participation in hostilities. Response: It is beyond the scope of the FAR rule to include definitions of ``law of war,'' ``law of war protections,'' and ``take direct part in hostilities.'' The respondent acknowledged that the terms cannot be satisfactorily defined in the FAR. These terms have been removed from the final FAR rule. The Department of Defense is developing ``law of war'' training that will be available to contractor personnel. c. ``Security Support,'' ``Security Mission,'' ``Mandatory Evacuation,'' and ``Non-Mandatory Evacuation'' Comment: One respondent states that the DoD interim rule uses these terms that are not defined. These terms are also used in the FAR rule. The respondent considers that these terms are critical to the contractor in determining and pricing its obligations under a solicitation and resulting contract. Response: Aside from the fact that the terms ``security support'' and ``security mission'' are used in their plain English meaning, whatever the contractor needs to know about them is set forth in the solicitation and contract. The terms and conditions of the contract define the mission and also specify if any security support will be provided. Since the Government will not provide security support except as specified in the contract, the abstract meaning of the term ``security support'' is irrelevant in determining and pricing the contractor's obligations under the contract. With regard to mandatory evacuation and non-mandatory evacuation, it is unnecessary to define these terms in the clause. Aside from the plain English meaning of the terms, an evacuation order will be identified as mandatory or non-mandatory. The contractor will be told what it needs to know in the case such an order is issued. d. ``Contractor'' Comment: One respondent proposes that ``contractor'' needs to be defined in the FAR rule. The respondent states that the current definition ``contractor personnel are civilians'' does not address the broad range of implementing partners and types of contractors used by the foreign assistance community. Response: The Councils consider that regardless of the type of contractors used by the foreign assistance community they are still civilians. Therefore, it does not enhance the clarity of this rule to attempt such a definition. If an individual agency finds a need for such a definition to address their particular circumstances, it can be included in their individual agency FAR supplements. Further, the FAR only applies to contracts as defined in FAR Part 2, not to the entire broad range of partners, ventures, and other types of contractors that may be used by the foreign assistance community. e. Definitions Reflecting Civilian Agency Authorities for Disaster, Humanitarian, Transitions, and Development Assistance Comment: One respondent states that while the current and proposed definitions are suitable to military operations, the section requires additional definitions reflecting civilian agency authorities for disaster, humanitarian, transitions, and development assistance as set out in Foreign Assistance legislation and in implementing regulations. Response: The Councils did not define these terms, such as ``disaster,'' ``humanitarian,'' ``transitions,'' etc., since the focus of the rule is on the status of contractor personnel in a designated operational area or supporting a diplomatic or consular mission. Therefore, it is more appropriate to address the particulars of civilian agency authority for disaster and humanitarian efforts in the individual agency FAR supplements. f. Area of Performance Comment: One respondent states that the term ``area of performance'' in the FAR rule is not defined; without a definition, an area of performance could mean anywhere a contractor performs--both overseas and in the U.S.--creating ambiguity. When used in the proposed FAR rule, it would appear that ``area of performance'' can be deleted or the term ``theater of operations or diplomatic or consular mission'' can be substituted if done with care. Response: The term ``area of performance'' has a broad meaning within the proposed FAR rule, which is discernable from the plain English meaning of the terms. The term ``area of performance'' is used in the FAR rule to avoid unnecessarily cumbersome repetition of the phrases ``designated operational area'' and ``supporting a diplomatic or consular mission'' and to be more specific in such cases when the ``designated operational area'' or ``supporting a diplomatic or consular mission'' might encompass a broader area within which the laws and regulations might vary from place to place. However, in paragraph 52.225-19(d), Compliance with laws and regulations, the term ``area of performance'' was considered duplicative and has been removed. The uses of the term ``area of performance'' in paragraphs 52.225- 19(f), (j), and (o) of the clause are not ambiguous. First, the title of the clause itself and paragraph 52.225-19(b) define the applicability of the clause to contractor personnel employed outside the United States in a designated operational area or supporting a diplomatic or consular mission. The usage in paragraphs 52.225-19(d) and (f) reiterates the restriction of the meaning to an area within the designated operational area or supporting a diplomatic or consular mission. The statement on paragraph 52.225-19(j) would be true wherever performance occurs, and the usage in paragraph 52.225-19(o) with regard to who is responsible for mortuary affairs upon death of a contractor in the area of performance is unambiguously not referring to death in the United States. 9. Consistent Terminology a. Performance Outside the United States Comment: One respondent states that the prescription at 25.000(a)(2) provides that Part 25 applies to ``performance of contractor personnel outside the United States.'' The scope of the proposed prescription at 25.302-1 (now 25.301-1) applies to ``contracts requiring contractor personnel to perform outside the United States.'' By contrast, 25.302-5 (now 25.301-4) directs contracting officers to insert the clause ``when contract performance requires that contractor personnel be available to perform outside the United States'' while the clause at 52.225-19(b) directs that the clause applies ``when contractor personnel are employed outside the United States.'' The respondent considers that these four provisions must be uniform and consistent. The respondent recommends that all four provisions be revised to state that they apply only when ``contractor personnel are to be deployed outside the United States to perform a covered contract.'' Response: The Councils concur that the language of the proposed rule could be more consistent. However, the language for the scope of the Part and title of the Subpart is supposed to be broader than the specific language in the text and clause. The Councils have changed the language in FAR 25.000, Scope of the [[Page 10950]] part to ``Contracts performed outside the United States.'' The term ``acquiring'' at 25.000(a)(1) was also changed to ``acquisition'' for parallel construction. The title of FAR subpart 25.3 has been revised to read ``Contracts Performed Outside the United States.'' The clause prescription and paragraph 52.225-19(b) of the clause have been modified to more closely conform to 25.301-1(a) (renumbered): Sec. 25.301-1(a)--``This section applies to contracts requiring contractor personnel to perform outside the United States * * *''. Sec. 25.301-4--``Insert the clause * * * in solicitations and contracts that will require contractor personnel to perform outside the United States * * *''. Sec. 52.225-19(b)--``This clause applies when contractor personnel are required to perform outside the United States.'' b. When Designated by the Chief of Mission Comment: One respondent also notes that the prescription at 25.302- 1(b) (now 25.301-1(b)) states it applies ``when designated'' by the Chief of the Mission while the clause at 52.225-19(b)(1)(ii) states that it applies ``when specified'' by the Chief of Mission. While not significant differences, the respondent believes the two applications should be identical. Response: This issue is now moot, because the language in question has been replaced by different criteria for applicability of the clause when used for performance with a diplomatic or consular mission. 10. Scope of Application a. Commercial Items Comment: One respondent is concerned that the proposed language at FAR 12.301 requires application of the new clause across-the-board to commercial items. This respondent recommends that the clause should only apply if the acquisition of commercial items is for performance of contractor personnel outside the United States in a covered theater of operations. Response: The Councils concur that the clause should only apply if the acquisition of commercial items is for performance of contractor personnel outside the United States in a designated operational area or supporting a diplomatic or consular mission. However, the respondent has misinterpreted the requirement at FAR 12.301. FAR 12.301 states that the clause at 52.225-19, Contractor Personnel in a Designated Operational Area or Supporting a Diplomatic or Consular Mission Outside the United States, is to be inserted as prescribed at 25.302-4. That takes the contracting officer back to the clause prescription that applies the specific limitations on use of the clause. No change to the proposed rule is required. b. Military Operations and Exercises Comment: One respondent is concerned about the application of this rule to a wide range of military operations and exercises that do not require special treatment. The proposed rule prescribes use of the clause when contractor personnel will be required to perform outside the United States in a theater of operations during ``other military operations,'' or military exercises designated by the combatant commander. One respondent recommends that the final FAR rule should include criteria for when the combatant commander should invoke the authority to require use of the clause. Response: The Councils agree that ``designated by the Combatant Commander'' should apply to ``other military operations'' as well as military exercises. Other military operations is so broadly defined that it does include situations in which use of the clause would probably be unnecessary. The Councils do not consider it appropriate for the acquisition regulations to prescribe to the combatant commanders the criteria for designating the required use of the clause. The combatant commanders are in the best position to determine whether the circumstances in a particular designated operational area warrant its use. The Councils also added clarification that any of the types of military operations included in the scope of this rule may include stability operations. c. Paragraph 25.301-1(a) of the Scope Applies to Military Operations Comment: One respondent wants it made clear that 25.302-1(a) (now 25.301-1(a)) only applies to military operations. Response: The Councils resolved this concern by replacing the term ``theater of operations'' with the term ``designated operational area,'' which includes the term ``military'' in the definition. d. Relation to the DFARS Rule Comment: One respondent recommends modifying the scope of the FAR rule to state that it covers contractor personnel not covered by the DFARS clause. The regulation should also address task and delivery orders when the umbrella contract might be issued by a civilian agency, e.g., GSA, but the task order is issued by a DoD agency authorizing personnel to ``accompany the force.'' Response: These are issues that must be addressed by DoD, not the FAR. The FAR generally only includes regulations that affect more than one agency, and leaves it to individual agencies to address their unique issues in agency supplements. e. Applicability to Contractors Supporting a Diplomatic or Consular Mission Comment: One respondent was concerned about the meaning of ``when designated by the chief of mission.'' Further, a respondent objected that no criteria were provided for this exercise of discretion by the chief of mission. Another respondent also considered it unclear how the fact that ``the contract is administered by federal agency personnel subject to the direction of a chief of mission'' signifies that the conditions in that location may require the use of the proposed FAR clause. Response: The Councils do not agree that the meaning of ``when designated by a chief of mission'' is unclear. However, the Councils have agreed that the clause should be used for contracts supporting a diplomatic or consular mission that has been designated by the Secretary of State as a danger pay post (see http://aoprals.state.gov/ Web920/danger--pay--all.asp), or at the discretion of the contracting officer. With regard to the respondent's concern about the significance of whether a contract is administered by Federal agency personnel subject to the direction of a chief of mission, that has to do with whether the contract to be performed is supporting a diplomatic or consular mission, not with the decision as to whether the clause is applicable. f. Designation of Specific Geographic Area Comment: One respondent questions whether the combatant commander or chief of mission should designate a specific geographic area for applicability of the clause. Response: The Councils agree that the changes to the scope of the FAR clause sufficiently define the area of applicability. An area designated by the Secretary of State as a danger pay post is quite specific, and the designated operational area is also a specific geographic area, defined by the combatant commander or the subordinate joint force commander for the conduct or support of specified military operations. [[Page 10951]] g. Applicability to Personal Service Contractors Comment: One Government respondent comments that some civilian agencies have the authority to hire personal services contractors to assist with programs outside the United States. These workers are considered to be part of the workforce. They request that the final FAR rule should not apply to personal services contractors. Response: The Councils have agreed to modify the scope at 25.301- 1(c) to exclude personal services contractors, unless otherwise provided in agency procedures. A similar exclusion has been added to the clause prescription at 25.301-4. h. Outside the Authority of the Chief of Mission Comment: One respondent requests that the FAR rule should clarify when the FAR clause is to be included if the contract is otherwise outside the authority of the chief of mission. The respondent states that many USAID and other agency contracts state that the contractors performing these contracts are ``outside of the authority'' of the chief of mission. In Afghanistan today, contractors ``under the authority of the chief of mission'' are required to live in the Embassy compound and are prohibited from traveling within the country. Response: Contractors are not under the authority of the Chief of Mission except as provided by the contract. The fact that currently in Afghanistan contractors under the authority of the Chief of Mission may be required to live in the embassy compound is particular to the immediate circumstances in that country. In most cases, contractors under the authority of the chief of mission are not required to live in the embassy and are not prohibited from travel in the country. 11. Logistical and Security Support (25.301-2 and 52.225-19(c)) a. Lack of Force Protection Represents Change in Policy Comment: Several respondents consider that shifting the responsibility for force protection to the contractor when a hostile force is operating in the area is a major policy change that the FAR rule does not explain. The respondents claim that security for contractor personnel supporting U.S. missions in an area wrought with conflict with armed enemy forces should normally be a DoD responsibility. One respondent considers that this is the ``penultimate paragraph'' in the transfer of responsibility for force protection from the military to contractors, and that it is ill-considered. Another respondent contends that, in locations ``where the military controls the theater of operations,'' the combatant commander should always have a security plan that covers contractors on the battlefield, whether those contractors accompany the U.S. Armed Forces or not. Response: In most areas of the world, it is the responsibility of the host nation to provide protection for civilians working in their country. Even for contractors authorized to accompany the force, the responsibility for force protection resides with the contractor unless otherwise specified in the contract (DoD Joint Publication 4-0, Chapter V). The writers of the regulations cannot commit the U.S. Armed Forces to provide protection to contractor personnel performing in areas of conflict, particularly those contractors not accompanying the U.S. Armed Forces, because there is no authorization to do so. b. Timing of Disclosure Comment: While one respondent acknowledges that most contractors who do not accompany the U.S. Forces understand that they are primarily responsible for their own logistics and security, the respondent notes that timing of the disclosure of agency support could impact an offeror's proposal costs, and recommends that, at a minimum, agencies be required to include support information, not just in the contract, but also in the solicitation. Another respondent also requests that the final rule should clarify whether a security plan, if any, will be developed prior to the release of the solicitation. Response: The Councils agree with respondents' comment that the timing of the disclosure of agency's decision to provide or not provide support could have an impact on the offerors' proposal/bid costs. In order to enhance the reasonableness and accuracy of bid and proposal costs, it is in the Government's interest to provide support information available at the time of solicitation. The Councils have revised the text at 25.301-2(b) to require the contracting officer to specify in the solicitation, if possible, the exact support to be provided. c. Changes in Government-Provided Support Comment: One respondent comments that any changes to Government- provided security support should expressly require an equitable adjustment to the contract. Response: The Councils do not concur with the respondent's statement that changes to Government-provided security should expressly require an equitable adjustment to the contract. The need for equitable adjustments will be evaluated in accordance with existing FAR changes clauses. d. Agency Cannot Know if Adequate Support Is Available Comment: One respondent comments that one of the conditions precedent to Government support is a determination by the Government that ``adequate support cannot be obtained by the contractor from other sources.'' The respondent asserts that whether or not competitors can obtain adequate support from other sources ``is outside of an agency's knowledge,'' further noting that this kind of knowledge involved ``marketplace issues that vary significantly by the size and experience of the contractor.'' Response: The Councils do not concur with the assertion that the Government would not be able to determine whether the contractor was able to obtain adequate support from other sources. The Government official would not be making decisions in a vacuum, but would perform necessary market research and consult with the contractor as necessary. In addition, the Councils also added that the agency shall provide logistical or security support only when the appropriate agency official, in accordance with agency guidance, determines that such Government support is available and is needed. e. Reasonable Cost Comment: One respondent states that there is a difference between the FAR and DFARS standards for support, and asserts that paragraph (c)(1)(i)(B) of the DFARS clause includes a consideration of reasonableness, which the proposed FAR rule does not, specifically: ``Effective security services are unavailable at a reasonable cost.'' Response: The Councils concur that the FAR text should also include a consideration of reasonable cost. The Councils have modified the wording of paragraph 25.301-2(a)(2) by adding the words ``at a reasonable cost.'' f. Security Costs Should Be a Cost Reimbursement Line Item Comment: One respondent states that security costs should be a cost reimbursement line item, even in a fixed-price contract, or provide equitable adjustment to reflect material changes in the threat environment. Response: According to FAR 16.103, selecting the appropriate contract type [[Page 10952]] is generally a matter of negotiation and requires the exercise of sound judgment. The contractor's responsibility for the performance costs and the profit/fee incentives offered are tailored to the uncertainties involved in contract performance. While the Councils acknowledge that there may be a high degree of uncertainty in the costs for security, the determination of how to handle that uncertainty is a matter of negotiation, rather than regulation. 12. Compliance With Laws, Regulations, and Directives (52.225-19(d)) Paragraph (d) of the proposed rule clause required the contractor to comply with, and ensure that its deployed personnel are familiar and will comply with, all applicable laws, rules and regulations, including those of the ``host country,'' all treaties and international agreements, all U.S. regulations, and all orders, directives and instructions issued by the Chief of Mission or Combatant Commander relating to mission accomplishments. a. Lack of Access to Necessary Information on Laws, Regulations, and Directives Comment: One respondent states that rarely will contractors, let alone offerors, have access to any (and certainly not all) relevant orders, directives, instructions, policies and procedures of the Chief of Mission or the Combatant Commander, even in those ``narrow'' functional areas specified in the clause. The respondent also states that frequently a contractor is 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. Response: Paragraph 52.225-19(d) of the clause is a requirement of the existing obligation for contractor personnel to comply with the laws and regulations applicable to the contract. Contractors have access to all of these laws and regulations and are required to comply with them. Country studies are available online at http:// www.state.gov. Such available online resources indicate that a contractor may ascertain on its own the laws and regulations necessary to comply with paragraph 52.225-19(d). In addition, the contractor supporting contingency operations should have access to any orders, directives, instructions, policies, and procedures of the Chief of Mission or Combatant Commander that have an effect or impact contract performance in the designated operational area. b. Varying Need for Extensive Information Comment: One respondent states that deployed employees may have no need for certain types of information that are unrelated to their specific work assignment. Response: The clause only requires knowledge of applicable laws. If the laws or regulations are not applicable to a particular employee, then the information should be tailored as appropriate. c. Inconsistency Between U.S. Laws and Host or Third Country National Laws and Between Orders of the Combatant Commander/Chief of Mission Comment: One respondent recommends that the clause address how U.S. contractors are to resolve conflicts between compliance with U.S. law and any inconsistent law of host or third country national laws. The respondent also recommends that the clause address how U.S. contractors are to resolve conflicts between the Chief of Mission and the Combatant Commander. Another respondent notes that there is a lack of guidance on how to resolve conflicts between a directive or order given by the Chief of Mission and the Combatant Commander. The respondent believes that the roles of the Chief of Mission and Combatant Commander should be defined in the rule. Another respondent also states that the roles of the Combatant Commander and Chief of Mission are intermingled in the FAR clause and not adequately distinguished. They note that both the Combatant Commander and the Chief of Mission have authority to require compliance with directives, evacuation orders, and the use of force in using weapons. The respondent believes that because the Combatant Commander and the Chief of Mission's authority will overlap, the rule should describe expected coordination between the two and should establish an order of precedence. Response: The Councils do not concur that the clause should address how U.S. contractors are to resolve conflicts between compliance with U.S. law and any inconsistent law of host or third country national laws or conflicts between the Chief of Mission and the Combatant