Defense Federal Acquisition Regulation Supplement; Contractor Personnel Supporting a Force Deployed Outside the United States, 23790-23803 [05-9007]
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23790
Federal Register / Vol. 70, No. 86 / Thursday, May 5, 2005 / Rules and Regulations
DEPARTMENT OF TRANSPORTATION
DEPARTMENT OF THE TREASURY
Federal Aviation Administration
Internal Revenue Service
14 CFR Part 71
26 CFR Part 1
[TD 9170]
[Docket No. FAA–2005–20065; Airspace
Docket No. 05–ACE–7]
RIN 1545–BD99
Section 1374 Effective Dates;
Correction
Modification of Class E Airspace;
Monett, MO
Internal Revenue Service (IRS),
Treasury.
ACTION: Correcting amendment.
AGENCY:
Federal Aviation
Administration (FAA), DOT.
AGENCY:
Direct final rule; confirmation of
effective date.
ACTION:
SUMMARY: This document confirms the
effective date of the direct final rule
which revises Class E airspace at
Monett, MO.
EFFECTIVE DATE:
0901 UTC, July 7, 2005.
FOR FURTHER INFORMATION CONTACT:
Brenda Mumper, Air Traffic Division,
Airspace Branch, ACE–520A, DOT
Regional Headquarters Building, Federal
Aviation Administration, 901 Locust,
Kansas City, MO 64106; telephone:
(816) 329–2524.
The FAA
published this direct final rule with a
request for comments in the Federal
Register on March 7, 2005 (70 FR
10917). The FAA uses the direct final
rulemaking procedure for a noncontroversial rule where the FAA
believes that there will be no adverse
public comment. This direct final rule
advised the public that no adverse
comments were anticipated, and that
unless a written adverse comment, or a
written notice of intent to submit an
adverse comment, were received within
the comment period, the regulation
would become effective on July 7, 2005.
No adverse comments were received,
and thus this notice confirms that this
direct final rule will become effective on
that date.
SUPPLEMENTARY INFORMATION:
Issued in Kansas City, MO on April 22,
2005.
Elizabeth S. Wallis,
Acting Area Director, Western Flight Services
Operations.
[FR Doc. 05–8938 Filed 5–4–05; 8:45 am]
BILLING CODE 4910–13–M
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This document corrects
temporary regulations (TD 9170) that
were published in the Federal Register
on Wednesday, December 22, 2004 (69
FR 76612). The document contains
temporary regulations providing
guidance concerning the applicability of
section 1374 to S corporations that
acquire assets in carryover basis
transactions from C corporations on or
after December 27, 1994, and to certain
corporations that terminate S
corporation status and later elect again
to become S corporations.
DATES: This document is effective on
December 22, 2004.
SUPPLEMENTARY INFORMATION:
defined in paragraph (a)(1) of this
section, that occurs on or after
December 27, 1994, without regard to
the date of the corporation’s election to
be an S corporation under section 1362.
(b) through (d) [Reserved]. For further
guidance, see § 1.1374–8(b) through (d).
Cynthia Grigsby,
Acting Chief, Publications and Regulations
Branch, Legal Processing Division, Associate
Chief Counsel (Procedures and
Administration).
[FR Doc. 05–8912 Filed 5–4–05; 8:45 am]
BILLING CODE 4830–01–P
SUMMARY:
Background
The temporary regulations (TD 9170)
that is the subject of this correction are
under section 1374 of the Internal
Revenue Code.
Need for Correction
As published, the temporary
regulations (TD 9170) contain errors that
may prove to be misleading and are in
need of clarification.
List of Subjects 26 CFR Part 1
Income taxes, Reporting and
recordkeeping requirements.
Correction of Publication
Accordingly, 26 CFR part 1 is corrected
by making the following correcting
amendments:
I
PART 1—INCOME TAXES
Paragraph 1. The authority citation for
part 1 continues to read in part as
follows:
I
DEPARTMENT OF DEFENSE
48 CFR Parts 207, 212, 225, and 252
[DFARS Case 2003–D087]
Defense Federal Acquisition
Regulation Supplement; Contractor
Personnel Supporting a Force
Deployed Outside the United States
Department of Defense (DoD).
Final rule.
AGENCY:
ACTION:
SUMMARY: DoD has issued a final rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to address issues related to
contract performance outside the United
States. The rule contains a clause for use
in contracts that require contractor
personnel to deploy with or otherwise
provide support in the theater of
operations to U.S. military forces
deployed outside the United States in
contingency operations, humanitarian
or peacekeeping operations, or other
military operations or exercises
designated by the combatant
commander.
DATES: Effective Date: June 6, 2005.
FOR FURTHER INFORMATION CONTACT: Ms.
Amy Williams, Defense Acquisition
Regulations Council, OUSD (AT&L)
DPAP (DAR), IMD 3C132, 3062 Defense
Pentagon, Washington, DC 20301–3062.
Telephone (703) 602–0328; facsimile
(703) 602–0350. Please cite DFARS Case
2003–D087.
SUPPLEMENTARY INFORMATION:
A. Background
This final rule contains DFARS policy
Authority: 26 U.S.C. 7805 * * *
relating to contracts that require
contractor personnel to deploy with or
I Par. 2. The section heading and text of
otherwise provide support in the theater
§ 1.1374–8T is revised to read as follows:
of operations to U.S. military forces
deployed outside the United States in
§ 1.1374–8T 1374(d)(8) transactions
(temporary).
contingency operations, humanitarian
or peacekeeping operations, or military
(a)(1) [Reserved]. For further
operations or exercises designated by
guidance, see § 1.1374–8(a).
the combatant commander. In addition,
(2) Section 1374(d)(8) applies to any
as a result of the DFARS Transformation
section 1374(d)(8) transaction, as
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initiative, this rule moves text from
DFARS 225.802–70 and 225.7401 to the
new DFARS companion resource,
Procedures, Guidance, and Information
(PGI), available at https://
www.acq.osd.mil/dpap/dars/pgi.
DoD published a proposed rule at 69
FR 13500 on March 23, 2004. Twentysix sources submitted comments on the
proposed rule. This final rule includes
changes made as a result of public
comments and as a result of comments
received from within DoD. In addition,
the paragraphs of the new clause have
been re-ordered to provide a more
logical sequence. The following is a
synopsis of DoD’s response to the public
comments and the changes made to the
rule.
1. Scope
a. Too broad.
Comment: Several respondents
believe that the rule is too broadly
written and that it attempts to cover too
many disparate situations. One
respondent states that the rule should
distinguish between ‘‘combat’’ and
‘‘peacekeeping or humanitarian’’
operations. Another respondent also
considers that contingency,
humanitarian, peacekeeping, and
combat operations are potentially
greatly dissimilar.
DoD Response: Nonconcur. The
clause language is written in such a way
as to allow for its use in a wide range
of military operations.
b. Too narrow.
Comment: Several respondents
thought that the rule was too narrow.
One respondent recommends that the
clause cover defense contractors
working mission essential services
within the United States. The
respondent suggests that the clause
incorporate the requirements of DoDI
3020.37, Continuation of Essential DoD
Contractor Services During Crises.
Another respondent believes that the
rule should cover ‘‘nation-’’ and
‘‘infrastructure-’’ building.
DoD Response: Out of scope/Concur
in part. DoD considers the first comment
to be out of scope because most of the
requirements of the clause would be
inapplicable in the United States.
Creation of a new clause to implement
DoDI 3020.37 as it applies to crises
within the United States is not within
the scope of this case. With regard to the
second respondent, flexibility has been
added to the scope by including other
military operations or exercises
designated by the combatant
commander.
c. Further revision.
DoD has carefully considered how to
accurately express the scope of this case
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and has developed the following scope
statement at 225.7402–1:
‘‘This section applies to contracts
requiring contractor personnel to deploy
with or otherwise provide support in
the theater of operations to U.S. military
forces deployed outside the United
States in—
(a) Contingency operations;
(b) Humanitarian or peacekeeping
operations; or
(c) Other military operations or
exercises designated by the combatant
commander.’’
The new clause is intended to apply
not only to contractor personnel that
‘‘accompany’’ or ‘‘deploy’’ with the U.S.
forces, but to also cover ‘‘support in the
theater of operations.’’ On the other
hand, it does not apply to contractor
personnel providing support from
outside the theater of operations or to
nation-building efforts such as the
reconstruction of Iraq. The term
‘‘combat operations’’ was removed, as it
is an undefined term, and ‘‘other
military operations or exercises
designated by the combatant
commander’’ was added to increase
flexibility. Application of this scope has
caused revisions throughout the rule,
particularly in the title of the clause, the
clause prescription at 225.7402–4(a),
and paragraphs (b) and (q) (as
redesignated in the final rule) of the
clause (applicability and subcontract
flowdown).
2. Applicability to Other Nationals
Comment: One respondent comments
that some of the requirements of the
proposed DFARS clause appear not to
apply to either host country contractor
personnel or third country national
contractor personnel.
DoD Response: Concur in part. DoD
agrees that some requirements do not
apply to host country contractor
personnel or third country national
contractor personnel. However, DoD
considers that, in most cases, the clause
is already drafted in such a manner that
it specifies, when necessary, any
limitations in the application to host
country contractor personnel and third
country national contractor personnel.
With regard to compliance with laws
and regulations, DoD has added the
word ‘‘applicable.’’ Thus, if a U.S. law
is not applicable to host country
contractor personnel or third country
national contractor personnel,
compliance is not required. The
paragraphs on pre-deployment and
processing and departure point clearly
apply only to those employees who are
deploying from the United States. The
paragraph on evacuation is already
focused on employees from the United
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States and third country national
contractor personnel. All the other cited
paragraphs would apply equally to
United States contractor personnel, host
country contractor personnel, and third
country national contractor personnel.
3. Equitable Adjustment
Comment: Many respondents brought
up the potential need for equitable
adjustment due to the perceived risks to
contractors in the situations covered by
this clause.
DoD Response: The need for equitable
adjustment has been addressed in the
following specific areas where the
respondents raised the issue:
government support, compliance with
orders of the combatant commander,
contractor personnel, insurance, scarce
commodities, and changes.
4. Need FAR Coverage
Comment: One respondent suggests
that this clause would be beneficial to
the civilian side of the Federal
Government (GSA, NIH, DOI, etc.) who
execute contracts for contractor support
to accompany the forces. It would also
be beneficial to the Department of State
and the U.S. Agency for International
Development, who deploy into
contingency or humanitarian
operations. Therefore, the respondent
suggests either including authorization
for other Federal agencies procuring on
behalf of DoD or other deployed federal
agencies to utilize the clause, or
including it in the FAR.
DoD Response: Concur in part. We
have no objection to any agency using
this clause, but it would be up to that
agency to make the decision. There is no
prohibition against an agency adopting
the clause of another agency. It may also
be a good idea to eventually include a
similar clause in the FAR but, because
DoD has an urgent need for the clause,
implementation is limited to the DFARS
at this time.
5. Fewer Contractor Personnel Should
Accompany Deployed Forces
Comment: One respondent states that
contractor support in theaters of war
should be limited to specialties that the
military cannot or does not have within
its personnel inventory, such as
technical support for systems. Several
respondents want to leave military
operations to military personnel, and
recruit more soldiers, if necessary.
DoD Response: Out of scope. The
purpose of this DFARS change is to
provide a clause to regulate contractor
personnel supporting a deployed force,
not to determine the policy on which
contractors should do so.
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6. Need for a List of Other Clauses That
Should Be Used With This Clause
Comment: One respondent
recommends revising the proposed rule
to ensure that other FAR and DFARS
clauses that address performance
overseas are indicated as mandatory
clauses, where applicable.
DoD Response: Concur in part. DoD
has included at DFARS 225.7402–4(b) a
reference to guidance in PGI on clauses
to consider when using the new clause
at DFARS 252.225–7040.
7. Contents of Written Acquisition Plans
Comment: One respondent suggests
the rule explain ‘‘how’’ to implement
DoDI 3020.37, Continuation of Essential
DoD Contractor Services During Crises.
The respondent stated that commanders
and contracting officers must attend to
these questions during acquisition
planning.
DoD Response: Concur. A reference to
PGI guidance on acquisition planning
for crisis situations outside the United
States has been added at DFARS
207.105(b)(19)(E).
8. Solicitation Provisions and Contract
Clauses for the Acquisition of
Commercial Items
Comment: One respondent suggests
that the final rule add to DFARS
212.301 the authority to use the clause
at DFARS 252.225–7043, Antiterrorism/
Force Protection Policy for Defense
Contractors Outside the United States,
in commercial item contracts awarded
under FAR Part 12.
DoD Response: Concur. DoD has
revised DFARS 212.301 to prescribe use
of the clause at DFARS 252.225–7043,
Antiterrorism/Force Protection Policy
for Defense Contractors Outside the
United States, in commercial item
contracts that include the clause at
DFARS 252.225–7040. Although the
intent of FAR Part 12 is to keep contract
requirements that are not standard
commercial practices to a minimum,
authorizing inclusion of this clause in
commercial contracts when contractor
personnel are providing support in the
theater of operations will minimize the
risk to personnel safety and the
organization and, at the same time,
make completion of contract
performance more efficient and
effective. This is important in contracts
for acquisitions in high risk situations,
whether the items are commercial or
noncommercial.
9. Defense Contractors Outside the
United States—General
Comment: One respondent questions
why the rule only specifically addresses
Germany. Several respondents request
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specific reference to bilateral
agreements with Japan and Korea and
policies that have application to
contractor employees.
DoD Response: Concur. DoD has
added 225.7401(c), with a reference to
PGI 225.7401(c) for work performed in
Japan or Korea.
10. Definitions (252.225–70XX(a))
(252.225–7040(a))
a. ‘‘Combatant commander.’’
Comment: Several respondents
discuss the use of the term ‘‘combatant
commander,’’ which was defined in the
proposed rule to include subordinate
commanders given authority by the
combatant commander to issue
direction to contractors in a specified
geographical area or for a specific
functional area.
DoD Response: Concur in part.
Subordinate commanders have been
removed from the definition of
‘‘combatant commander.’’ It is still
possible for the combatant commander
to delegate authority to a subordinate
commander. According to FAR 1.108(b),
each authority in the FAR (or DFARS)
is delegable unless specifically stated
otherwise. Furthermore, paragraph (p)
of the clause in the proposed rule has
been substantially modified, and
paragraph (q) of the clause in the
proposed rule has been deleted, which
will remove the conflicts regarding
contractors receiving direction from
unidentified subordinate commanders.
b. ‘‘Combat operations.’’
Comment: One respondent observes
that in the prescription the term
‘‘combat operations’’ is used but no
definition is provided.
DoD Response: Concur. ‘‘Combat
operations’’ is not a defined term in the
DoD Dictionary of Military and
Associated Terms, and has been deleted
from the final rule.
c. ‘‘Contractors accompanying the
force.’’
Comment: Several respondents
request the definition for
‘‘accompanying a force.’’ One
respondent questions whether it is
applicable strictly to contractors
accompanying a force on the move or
whether it also covers contractors
situated in an area where military forces
are deployed.
DoD Response: The term
‘‘accompanying the force’’ is no longer
used. The phrase ‘‘deploy with or
otherwise provide support in the theater
of operations’’ should answer the issues
raised by the respondents. It applies to
contractor personnel situated in an area
where military forces are deployed, and
to some extent, contractor personnel intransit, although some provisions would
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be applicable only in the theater of
operations. DoD uses the term ‘‘in the
theater of operations’’ rather than ‘‘in
country’’ as the theater of operations
may not be restricted to a single
country.
d. Further revision.
DoD has not included definitions for
‘‘contingency operation’’ and
‘‘humanitarian or peacekeeping
operation’’ in the clause as they are now
automatically incorporated from FAR
Part 2 by the new clause at FAR 52.202–
1, Definitions (July 2004).
11. Shifts Risk to Contractors (252.225–
70XX(b)) (252.225–7040(b))
Comment: Several respondents
comment that the proposed rule
appeared to shift too much risk to
contractors. One respondent comments
that the use of the term ‘‘inherently
dangerous’’ in paragraph (b) of the
clause could jeopardize a contractor’s
ability to obtain insurance coverage
under the Defense Base Act and other
provisions.
DoD Response: Concur in part. The
term ‘‘inherently dangerous’’ overstates
the intent of the rule. There was no
intent to change the law or to affect
coverage under the Defense Base Act,
the War Hazards Compensation Act, or
any other provision of law or regulation.
Paragraph (b)(2) of the clause has been
changed to state that contract
performance in support of military
forces may require work in dangerous or
austere conditions. If an independent
contractor volunteers or agrees to
perform work in such a setting, the
contractor must assume responsibility to
supervise its employees and to train and
prepare them to behave in as safe a
mode as possible. Contractors must not
directly participate in hostilities against
an armed enemy. The risk associated
with inherently Governmental functions
will remain with the Government.
Contractors should resolve concerns
about a specific contract during preaward negotiations.
12. Government Support
a. Government-provided support
should be set forth in contract.
Comment: Several respondents
comment that a contractor would not be
able to ascertain what is in an
individual operation order.
DoD Response: Concur. The language
stating ‘‘or in the operation order of the
combatant commander’’ has been
removed.
Comment: Several respondents have
concern about the effect of paragraph
(c)(2) of the clause in the proposed rule.
They believe that the Government
should be required to specify in the
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solicitation and resulting contract the
types of Government-provided support,
if any, that will be required or
authorized.
DoD Response: Concur in part. DoD
concurs that Government-provided
support should be specified in the
contract. Paragraph (c)(2) of the clause
has been deleted.
b. Changes in available support.
Comment: One respondent expresses
concern relative to any deficit (or
unanticipated availability) that might
arise between support authorized in a
contract and actual support available in
a particular theater. A second
respondent notes that the combatant
commander would make the ultimate
decision on providing resources to a
contractor regardless of what is in the
contract. Another respondent
recommends adoption of additional
language that will provide a mechanism
for handling delays or non-delivery of
promised Government-provided support
similar to that utilized in the
Government property clauses. The
respondent also recommends the
adoption of language substantially
similar to that in the FAR Government
property clauses that would provide for
equitable adjustment in the case of late
or non-delivery of promised support on
commercial contracts under FAR Part
12, since such contracts do not normally
contain a Government property clause.
DoD Response: Concur in part. The
rule should address potential
differences between Governmentprovided support anticipated at time of
contract/task/option award and actual
support made available in the theater of
operations. Changes will be handled as
specified in the Changes clause of the
contract, which will also cover changes
in Government-furnished facilities,
equipment, material, services, or site, as
specified in paragraph (p) of the clause
at 252.225–7040 in the final rule. DoD
does not concur with the
recommendation to outline the scope of
any adjustment necessitated by changes
in Government support, since there is
no intent to modify the already-existing
procedures inherent in any changes
clause.
c. Lack of sufficient detail defining
variety of support functions.
Comment: Several respondents
believe that the subject provision is
lacking in sufficient detail on defining
a variety of support functions.
DoD Response: Partially concur. The
final rule now implements DoD policy
that the combatant commander will
develop a security plan to provide
protection, through military means, of
contractor personnel engaged in the
theater of operations unless the terms of
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the contract place the responsibility
with another party. In addition, the
clause states that all contractor
personnel engaged in the theater of
operations are authorized resuscitative
care, stabilization, hospitalization at
level III military treatment facilities, and
assistance with patient movement in
emergencies where loss of life, limb, or
eyesight could occur. Hospitalization
will be limited to stabilization and
short-term medical treatment, with an
emphasis on return to duty or
placement in the patient movement
system. However, the contractor is
responsible for ensuring that the
Government is reimbursed for any costs
associated with such treatment or
transportation.
The remaining language is
deliberately non-specific in outlining
available Government support, since
that can only be ascertained after
consultation with the relevant
combatant command and service
components. The general types of
support that should be considered are
outlined in the corresponding PGI
coverage. Once adequate research
regarding availability of Government
support is accomplished, the
contracting officer can then provide for
such support in the resulting contract.
d. Difficulty in ascertaining available
support.
Comment: Several respondents
suggest that DoD inform users how to
obtain the information necessary to
specify support in a contract. This will
require a high degree of coordination
between a contracting officer and
military organizations that would be
responsible for providing resources in
an area of operations.
DoD Response: Partially concur. The
new PGI guidance on acquisition
planning specifies that the requiring
activity is responsible for obtaining
pertinent operation plans, operation
orders, and annexes from the affected
combatant command or military service
element, so that the contract will be
consistent.
e. Support should be commensurate
with military personnel.
Comment: One respondent expresses
concern that companies in many cases
do not, and cannot, provide in-country
support for deployed employees. They
note that contractor personnel have
received, and should receive, support
commensurate with the uniformed
members with whom they serve.
DoD Response: Nonconcur. The
Government will only provide support
services that are available in the theater
of operations concerned. To the extent
that such support is identifiable and
known at time of solicitation and award,
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it can be specified in the solicitation
and resulting contract. However, where
unavailable from Government sources,
such support can only be provided by
the contractor. Any contractor can base
its decision to submit a proposal on its
own assessment of ability to provide
and price personnel support.
f. Contracting officer must
communicate support requirements to
combatant commander.
Comment: One respondent presumes
that the contracting officer would have
to communicate the support
requirements to the combatant
commander for incorporation into an
operation order.
DoD Response: Nonconcur. The
contracting officer can only provide for
Government resources that are available
to a combatant commander. The
language referring to support outlined in
operation orders has been deleted in
response to another comment to avoid
contractor confusion.
g. Which military organization will
provide the support?
Comment: One respondent
recommends adding a requirement for
the contracting officer to specify in the
contract or task order the military
organizations that will provide support
to a contractor, with further description
in PGI.
DoD Response: Nonconcur. It is
unlikely that the annexes will be
specific in describing the individual
military organizations that would
provide any contractor with support in
defined areas. Hence, the suggested
additional language would be
unworkable, particularly when
specifying Government-provided
resources too far in advance of an actual
deployment.
h. Effect on Defense Base Act.
Comment: One respondent argues that
the requirement for contractors to
generally provide their own in-theater
support would make it even more
difficult for contractors to obtain
Defense Base Act coverage.
DoD Response: The DAR Council
believes that the type of support the
respondent is concerned about is force
protection. It is DoD policy that the
combatant commander will develop a
security plan to provide protection
through military means unless valid
contract terms, approved by the
combatant commander, place the
responsibility with another party. DoD
has modified 225.7402–3(a) and
paragraph (c) of the clause at 252.225–
7040 to state this policy and to
emphasize the fact that the Government
may provide the other types of support
listed in PGI 225.7402–3(a) and that
such support to be provided will be
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specified in the contract. Also see the
responses at paragraph 12.c and the
responses regarding insurance issues in
paragraph 22.
i. Force protection.
Comment: One respondent expresses
concern that the rule permits
contractors to hire other contractors
who, in turn, will hire armies of
mercenaries (frequently local
mercenaries) to provide force
protection. The respondent foresees that
such mercenaries will attempt control of
the protection market, may be likely to
put intelligence information at risk, and
will contribute to ‘‘power politics’’ in
the particular theater.
DoD Response: Nonconcur. As stated
in the previous paragraph, it is DoD
policy to provide force protection to
contractor employees providing support
in the theater of operations to U.S.
military forces unless valid contract
terms, approved by the combatant
commander, place that responsibility
with another party. Even though in
some instances contractors may be
required to hire security and force
protection, this does not equate to
‘‘armies of mercenaries.’’ Every
contractor will be required to adhere to
laws and regulations of the United
States, the host country, and third
country laws, as well as orders,
directives, and instructions issued by
the combatant commander relating to
various topics, including force
protection. This requirement effectively
permits Government control over and
minimization of the types of excesses
foreseen by this respondent.
13. Compliance With Laws and
Regulations
a. Inaccessibility of information on
applicable laws and regulations.
Comment: Some respondents consider
paragraph (d) of the clause to be an
unreasonable requirement because there
is no reliable and accessible source of
information for contractors regarding all
of the laws (particularly host country
and local laws) that may be applicable
to a contractor supporting a contingency
or humanitarian effort. A contractor may
be asked to deploy to countries or areas
of the world on short notice without
extended advance notice and without
meaningful access to information on
relevant foreign and local laws.
Contractors are often denied access to
the very information that would be
required to comply with this
requirement because it is classified. One
respondent wants the Government to
notify contractors in writing of all the
requirements with which the
contractors are expected to comply,
other than laws and international
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treaties. The respondents are concerned
that internal Government policies,
procedures, and directives and
instructions would not always be
communicated by the Government to
the contractor.
DoD Response: Generally nonconcur.
Paragraph (d) of the clause is a reminder
of the existing obligation for contractor
personnel to comply with the laws and
regulations applicable to a contract.
Contractors have access to all of these
laws and regulations and are bound to
comply with them. For example,
analysis of the host country law is an
existing aspect of acquisition planning
under FAR Part 7. Country studies are
available online at https://www.state.gov.
Such available online resources indicate
that a contractor may independently
ascertain the laws and regulations
necessary to comply with paragraph (d)
of the clause. A single resource for the
laws and regulations enumerated in
paragraph (d) would be convenient to
the contractor, but it would need to be
specific to each contract, it could easily
inadvertently omit an applicable law or
regulation, and is in large part
redundant to available resources.
However, DoD concurs that it needs to
make organizational improvements to
improve the accessibility of contractors
to nonclassified portions of classified
documents and orders of the combatant
commanders.
b. Conflicting requirements.
Comment: One respondent is
concerned that it may be impossible to
comply with every applicable law,
treaty, agreement, regulation, directive,
and instruction simultaneously because
they are inconsistent and contain
conflicting provisions.
DoD Response: Nonconcur. Again,
paragraph (d) of the clause is a reminder
of the existing obligation. Regardless of
paragraph (d), it is incumbent upon the
contractor to make the best possible
judgment in deciding which law or
regulation takes precedence in the case
of conflict.
c. Employees do not need to know.
Comment: One respondent notes that,
while there may be a reason for a
contractor to have a basic understanding
of the special laws and policies related
to performance of a contingency
contract, there is little need for all
employees to have such comprehensive
knowledge.
DoD Response: Concur in part. The
contractor personnel need to have
sufficient knowledge of the laws and
regulations that are applicable to them,
to avoid violating them in a foreign
country. DoD has added a qualifying
phrase to focus the applicability to
personnel ‘‘supporting a force deployed
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outside the United States as specified in
paragraph (b)(1)’’ of the clause.
d. The contractor cannot verify
compliance by individual employees.
Comment: One respondent comments
that private business has no ability to
verify compliance with local law when
its individual employees are assigned to
classified locations.
DoD Response: Nonconcur. The
contractor is still responsible for its
employees.
e. Paragraph (d)(2) of the clause,
Treaties and international agreements
(e.g., Status of Forces Agreements, Host
Nation Support Agreement, and Defense
Technical Agreements).
Comment: The Geneva and Hague
Conventions should be added to the
parenthetical.
DoD Response: Nonconcur. The
treaties and international agreements
that are listed are some examples, not an
exhaustive list. The problem with
examples is that they are not all
inclusive, but are often misinterpreted
(i.e., if it is not listed, it doesn’t apply).
Therefore, DoD has deleted the
examples.
f. Paragraph (d)(4) of the clause,
Orders, directives, and instructions
issued by the Combatant Commander
relating to force protection, security,
health, safety, or relations and
interaction with local nationals.
Comment: One respondent states that
the mandate in paragraph (d)(4) that
contractors comply with the ‘‘orders,
directives, and instructions issued by
the Combatant Commander’’ puts the
Commander in a position of directing
contract performance without actual
contracting authority. Another
respondent suggests that a new
subparagraph be added to read as
follows: ‘‘The Government Contracting
Officer or the Combatant Commander is
responsible for communicating to the
Contractor any applicable instructions,
orders, directives, etc. to the Contractor
and Contractor’s personnel. To the
extent that compliance requirements
change after contract award, the
contractor shall be entitled to an
equitable adjustment for any increased
costs associated with those costs.’’
DoD Response: Nonconcur. The
combatant commander acts in a position
of sovereign authority for issues relating
to force protection, security, health, and
safety. If a contractor were driving a
vehicle on a street in the United States
and a fire marshal directed the
contractor to take a detour because of a
fire, the contractor would be required to
obey that order. The combatant
commander has the authority to serve as
the single point of contact for such areas
in the theater of operations, since the
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combatant commander is in the best
position to anticipate the needs of the
force and how it will operate in the
field. Any claim to equitable adjustment
as the result of a change in the orders,
directions, or instructions of the
combatant commander will be handled
in accordance with the terms of the
contract.
g. Paragraph (d)(5) of the clause,
Applicability of the Uniform Code of
Military Justice (UCMJ).
Comment: Some respondents request
more specific delineation of the
applicability of the UCMJ. One
respondent comments that paragraph
(d)(5) should be deleted because the
UCMJ will never, as a practical matter,
be applicable under the clause because
contractor employees are not subject to
the UCMJ except during a declared war.
DoD Response: Concur. Paragraph
(d)(5) has been deleted in its entirety. To
the extent that it is applicable, it is
covered by paragraph (d)(1) of the
clause.
14. Contractor Personnel (252.225–
70XX(e)) (252.225–7040(h))
a. Role of the combatant commander.
Comment: One respondent
recommends that paragraph (1) should
reference paragraphs (p) and (q) because
combatant commanders can also take
action to remove contractor personnel
without the involvement of the
contracting officer.
DoD Response: Paragraph (p) has been
substantially modified and paragraph
(q) of the clause has been deleted. (See
paragraph 25 of this section.)
b. Notification to contractor.
Comment: One respondent
recommends rewording paragraph (e)(1)
of the clause to require notification and
an opportunity to resolve the matter
with the contracting officer.
DoD Response: Nonconcur.
Contracting officers must have the
ability to summarily direct the removal
of personnel perceived as jeopardizing
or interfering with the mission. It is
reasonable to assume that, prior to
directing removal, the contracting
officer would have already made efforts
to resolve the matter with the
contractor.
c. Reasonable opportunity to replace/
equitable adjustment.
Comment: Several respondents
recommend that contractors be given a
reasonable opportunity to replace any
personnel removed from the force and
be given an equitable adjustment for any
additional expenses that may be
compensable under the contract.
DoD Response: Nonconcur.
Contractors, in accordance with
requirements of the contract, must have
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a plan for immediate replacement of
employees removed from the theater of
operations. Contractors must replace
and, where applicable, repatriate any
contractor personnel at its own expense.
Further revision: DoD has revised
paragraph (e)(1) of the clause
(redesignated as paragraph (h)(1) in the
final rule) as follows: ‘‘(1) The
Contracting Officer may direct the
Contractor, at its own expense, to
remove and replace any contractor
personnel who jeopardize or interfere
with mission accomplishment or who
fail to comply with or violate applicable
requirements of this clause. Such action
may be taken at the Government’s
discretion without prejudice to its rights
under any other provision of this
contract, including the Termination for
Default clause.’’ This language was
adopted from the Army interim rule (48
CFR 5152.225–74–9000, Contractors
Accompanying the Force, 68 FR 66740,
November 28, 2003).
d. Provide the plan to the contracting
officer.
Comment: One respondent
recommends revising the last sentence
of paragraph (e)(2) of the clause to read:
‘‘This plan shall be provided to the
Contracting Officer upon request and
shall be made available for review by
the Contracting Officer’s
Representative.’’
DoD Response: Partially concur. DoD
concurs that the plan should be made
available to the contracting officer upon
request. Since the FAR defines
‘‘contracting officer’’ to include
authorized representatives of the
contracting officer when acting within
the limits of their authority as delegated
by the contracting officer, the phrase
‘‘shall be made available for review by
the Contracting Officer’s
Representative’’ has been deleted from
the clause.
e. Data item description for the plan.
Comment: One respondent
recommends that the Government
provide a data item description for the
desired unavailable employee
replacement plan and list the plan on
the contract data requirements list.
DoD Response: Nonconcur. It is not
necessary to establish a data item
description in order to request that the
contractor have a plan for replacing
employees. This allows the contractor
more flexibility in determining the
format and content of the plan.
f. Further revision. DoD has also
added a requirement to keep the plan
current.
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15. Personnel Data (252.225–70XX(f))
(252.225–7040(g))
a. ‘‘Theater of operations’’ not
defined.
Comment: One respondent believes
‘‘theater of operations’’ (not the term
used in the proposed rule) is not a
specifically defined term and could
create confusion as to which employees
are in a given geographic location
supporting specific activities. The
respondent recommends revising
paragraph (1) to require the contractor to
maintain information on all employees
deployed into a theater of operation as
defined by the contracting officer for
each covered contingency operation.
DoD Response: Concur in part. A
definition of ‘‘theater of operations’’ has
been added in paragraph (a) of the
clause. In accordance with the scope of
this case, DoD has substituted the
following language: ‘‘current list of all
contractor personnel that deploy with,
or otherwise provide support in the
theater of operations to the U.S. military
forces as specified in paragraph (b)(1) of
this clause.’’
b. Cost of performance.
Comment: Several respondents
express concern over the time and
expense for contractors to prepare and
maintain the information.
DoD Response: Nonconcur. As the
system is currently envisioned, this
requirement is incidental to contract
performance and it is not expected to
place an unreasonable cost burden on
the contractors. It would appear to be a
normal prudent business practice to be
able to identify which employees are
working in high risk areas.
c. Specifically priced contract
deliverable.
Comment: One respondent
recommends making the contractual
obligation to maintain and/or provide
the data a specifically priced contract
deliverable.
DoD Response: Nonconcur.
Contractors should consider the work
involved and price their proposal
accordingly. As the system is currently
envisioned, this requirement is
incidental to contract performance and
it is not expected to place an
unreasonable cost burden on the
contractors.
16. Pre-deployment Requirements
(252.225–70XX(g)) (252.225–7040(e)
and (k))
a. Information from operation plans
and operation orders may not be
available to contractor.
Comment: Several respondents
suggest deleting the verbiage about
‘‘contract annex to the operation order’’
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and including requirements from the
operation order in the contract. One
respondent further recommends that the
clause language require compliance ‘‘to
the best of the contractor’s knowledge.’’
DoD Response: Concur in part. DoD
has deleted ‘‘contract annex to the
operation order’’ from the clause. It is
the responsibility of the requiring
activity to ensure that specific
operational requirements are
deciphered, and the contracting officer
must incorporate them into the contract.
DoD does not agree that the clause
language should be changed to require
compliance ‘‘to the best of the
contractor’s knowledge,’’ as language of
this nature would be unenforceable.
Specific requirements of each element
of this clause paragraph will be
sufficiently spelled out so contractors
know exactly what is required.
b. Specific number of employees.
Comment: Several respondents
believe that this clause should be
revised to refer to a specific number of
employees a contractor can provide to
meet desired qualifications, to permit
advance negotiations between
contractors and customers to avoid lag
times once operations begin.
DoD Response: Nonconcur. This
clause puts contractors on notice that
they may need to deploy and, therefore,
they need to ensure they have qualified
or qualifiable personnel to meet contract
requirements.
c. Security and background checks
(para. (1)).
Comment: One respondent notes that
the Government must specify security
requirements on the DD Form 254,
Access to National Security Information,
if the contractor and its employees may
be required to have access to certain
national security information. Another
respondent recommends deleting ‘‘All
applicable specified’’ and replacing it
with ‘‘Applicable.’’ A respondent also
recommends adding ‘‘and acceptable’’ at
the end of the paragraph to ensure
security and background checks were
accomplished and are acceptable.
DoD Response: Concur in part. A DD
Form 254 is used when a contractor will
require access to or will generate
classified information, so it may or may
not be applicable in a contract.
Background checks may also be
required and, if so, should be specified
in the contract. DoD has changed ‘‘All
applicable specified’’ to ‘‘All required’’
and ‘‘and acceptable’’ has been added at
the end.
d. Medical requirements (para. (2)).
Comment: Several comments were
received regarding the fact that no
specific minimum medical standards
were included in the clause; thus,
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contractors do not know what
constitutes ‘‘medically and physically
fit.’’ Specific readiness requirements
and required vaccinations must be set
forth in the contract. An appeal
procedure should be included to
preclude forcing contractors to submit
to potentially hazardous, experimental,
or untested vaccinations. DoD should
provide any vaccines that are only
available to federal providers. This
requirement has the potential to
significantly increase cost of
performance to establish and maintain a
system concerning health and level of
physical readiness for contractor
employees. Another respondent is
concerned that contractors are
dependent upon the Government to
provide certain vaccines because only
the Government has access to those
vaccines.
DoD Response: Concur in part. The
clause has been revised to state that
contractor personnel must meet the
minimum medical screening
requirements as set forth in the contract.
The Government will provide
contractors with theater-specific
medical supplies or medications.
The term ‘‘vaccinations’’ has been
changed to ‘‘immunizations’’ to be
consistent with terminology in DoD
policy. The Combatant Command
Surgeon establishes immunization
requirements for the area of operations
and maintains a listing of them. The
immunization listing will also need to
be incorporated in contracts. DoD does
not agree with establishment of appeal
procedures for immunizations for
contractors. If contractor personnel are
not willing to receive the required
immunizations, the contractor will be
required to provide other personnel who
are willing to meet the contractual
requirements.
e. Vehicle or equipment licenses
(para. (3)).
Comment: One respondent
recommends adding ‘‘United States’’
before ‘‘licenses’’ to clarify that there is
no obligation for contractors to search
out or comply with any foreign
requirements to operate vehicles or
equipment.
DoD Response: Nonconcur. Although
contractor personnel may not be able to
obtain foreign licenses prior to
deployment, contractors may be
required to obtain foreign licenses at the
deployed location. Paragraph (3) has
been relocated from pre-deployment
requirements to a separate paragraph
(k).
Comment: Another respondent states
that the clause should address
ownership of vehicles and equipment
necessary to perform the contract in the
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theater of operations and requests that
the contractor and its employees not be
held liable for damages, of any kind,
resulting from the operation of
Government owned or leased
equipment, and shall be indemnified
and held harmless against all losses,
costs, claims, causes of action, damages,
liabilities, and expenses arising directly
or indirectly from any act or omission
relating to the operation of such
equipment by contractor or contractor’s
employees, agents, subcontractors, or
suppliers.
DoD Response: Nonconcur. Generally,
contractors are required to provide their
own vehicles and equipment to meet the
terms of their contract. Vehicle
requirements should be specified
elsewhere in the contract and any
contract that provides government
furnished equipment (GFE) will include
a GFE clause in the contract to cover
liability for damages. This paragraph
only covers required licenses to operate
vehicles and equipment.
f. Visas.
Comment: One respondent does not
believe it is in the best interest of the
United States to impose a requirement
that a contractor obtain a foreign
Government’s approval through
entrance or exit visas before
implementing a U.S. Government
contract.
DoD Response: Nonconcur.
Contractors must coordinate through the
State Department and ensure their
personnel meet all requirements for
entering and exiting the deployed
location. The mere fact that a contractor
has a contract with the U.S. Government
does not absolve the contractor from
meeting foreign entry and exit
requirements.
g. Geneva Conventions identification
card.
Comment: One respondent
recommends issuing Geneva
Conventions identification cards to
contractor employees.
DoD Response: Concur. The clause
has been revised to clarify that
deploying contractor personnel should
receive a Geneva Conventions
identification card from the deployment
center.
h. Country and theater clearance
(para. (5)).
Comment: Several respondents
comment that the clause should specify
what country and theater clearances are
required and where to obtain them.
DoD Response: Concur. The clause
has been revised to cite DoD Directive
4500.54, Official Temporary Duty
Abroad, and DoD 4500.54–G, DoD
Foreign Clearance Guide.
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17. Military clothing and equipment
(252.225–70XX(h)) (52.225–7040(i))
a. Authorization to wear military
clothing (para (1)).
Comment: One respondent
commented that ‘‘specifically
authorized by the Combatant
Commander’’ should be changed to
‘‘required by the Combatant
Commander.’’ They recommended
changing ‘‘military clothing’’ to
‘‘military uniforms’’ and they believe
wearing of military uniforms by
contractor personnel should require
consent of the contractor.
DoD Response: Nonconcur. The
combatant commander does not require
the wearing of military clothing but may
authorize, in writing, certain contractor
personnel to wear standard military
clothing for operational reasons on a
case-by-case basis. ‘‘Uniforms’’ implies
military uniforms with appropriate
rank, decorations, etc., which are only
authorized for uniformed military
personnel. Clothing denotes uniform
items worn without specific military
insignia.
b. Need for distinctive insignia.
Comment: If contractor personnel are
authorized by the combatant
commander to wear military clothing
(and are not carrying firearms), they
should be required to wear distinctive
civilian insignia to keep non-combatant
civilian status clear under the Geneva
Conventions.
DoD Response: Concur. DoD has
added to the clause language pertaining
to distinctive insignia.
c. Organizational clothing and
equipment.
Comment: Change ‘‘specific items’’ to
‘‘military-unique organizational clothing
and individual equipment (OCIE).’’ The
Government should inform the
contractor of necessary clothing and
protective equipment and provide OCIE
to the contractor when such equipment
is only available from the Government.
DoD Response: Concur. Use of term
OCIE instead of ‘‘specific items’’ adds
clarification and consistency. The
clause, as written, already provides for
Government issuance of military-unique
OCIE. Necessary clothing and protective
equipment should be spelled out
elsewhere in the contract.
d. Return of OCIE.
Comment: Several respondents
recommend changing the clause to
allow the return of OCIE to places other
than the original point of issue, as
directed by the contracting officer or
contracting officer’s representative
(COR). Another respondent states that
contracting officers are geographically
separated from the place of performance
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and do not have visibility over
equipment issued to contractor
employees in the theater. This
respondent recommends adding
language to make contractors directly
responsible to the issuing organization
for equipment that needs to be returned.
DoD Response: Concur in part.
Concur with changing the language to
allow the return of OCIE to places other
than the original point of issue, as
directed by the contracting officer, to
provide for flexibility at the deployed
location. Concur in theory with the
recommendation to have contractors
directly responsible to the issuing
organization. However, the COR is
usually in the theater of operations and
would have visibility over equipment
that is issued in the theater of
operations. The COR can direct the
contractor to return the equipment to
the desired location if given the
authority to do so. The language ‘‘In
accordance with Government-Furnished
Property clauses specified elsewhere in
this contract’’ is redundant and
unnecessary so it has been deleted.
18. Weapons (252.225–70XX(i))
(252.225–7040(j))
a. Contractor personnel must be able
to protect themselves.
Comment: Many respondents feel
strongly that contractor personnel must
be able to protect themselves in
dangerous situations and seem to think
that the proposed rule bans contractors
from carrying weapons. There are fears
that commanders could easily depend
upon contractor labor, transportation of
heavy equipment, or civil engineering
services, but will not be manned to a
level necessary to protect them.
DoD Response: Partially nonconcur.
The clause does not require contractors
to be unarmed in all cases. The clause
states that the combatant commander
will make a determination whether
contractors can be armed, and the type
of arms allowed, in any particular
situation. The clause allows the
combatant commander, who is
responsible for military control in the
region, to determine on a case-by-case
basis whether arms are necessary.
b. Privately owned weapons.
Comment: Several respondents object
that allowing contractors to carry
privately owned weapons is a major
policy shift and should not be allowed.
Authorizing private firearms carries a
great risk of a political/military
occurrence that can negatively impact
the overall mission and national
security and is not outweighed by the
benefit of private firearms, since there is
authority for military issuance already.
Several respondents believe that
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employee- or other privately-owned
firearms should be prohibited in all
cases, but wants a distinction made
between ‘‘Government-furnished
firearms’’ and ‘‘contractor-provided’’
firearms.
DoD Response: Concur in part. The
language specifically allowing the
combatant commander to authorize the
carrying of privately-owned weapons
has been deleted from the clause.
However, as the DoD policy is not yet
established, the clause leaves the
decision to the combatant commander,
to be made in conformity with treaties,
laws, regulations, and policies that are
in effect at the time of the decision.
c. Status as noncombatant civilians.
Comment: Several respondents are
concerned that contractor personnel
should not be armed except in
extremely limited circumstances when
necessary for self-defense. The
Government actions of arming the
contractor under certain circumstances
places the contractor at risk of forfeiting
their status as noncombatant civilians,
subjecting a contractor captured by the
enemy to be deemed an unlawful
combatant or a mercenary, thereby
losing POW status and treatment. If
contractor employees are armed, the
respondent recommends that the
Government provide training to
contractor personnel regarding when the
weapons can be used, not just how to
use them.
DoD Response: Concur in part. DoD
understands the potential risk in
allowing contractors to carry and use
weapons in a hostile environment,
which may arise in some of the
situations covered by this clause.
However, since the clause will be used
for a variety of situations and
circumstances, the most practical
approach is to give the combatant
commander the final decision as to
whether to allow contractors to carry
and use weapons and the types of
weapons that will be authorized. The
clause has been amended to caution that
contractor personnel are not combatants
and shall not undertake any role that
would jeopardize that status. The clause
already requires the Contractor to
ensure that its personnel who are
authorized to carry weapons are
adequately trained. That should include
training not only on how to use a
weapon, but when to use a weapon.
d. Contractor and contractor
employees must agree to accept
weapons.
Comment: Several respondents want
the rule to clarify that acceptance of
weapons by contractor employees is
strictly voluntary and must be explicitly
authorized by the contractor.
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DoD Response: Concur in part. The
clause has been amended to explicitly
state that the contractor must request
authorization for its employees to carry
weapons before the combatant
commander authorizes such activity. It
is the contractor’s responsibility to
determine whether to request
authorization and for which employees
to request such authorization. The
employer-employee relationship is the
responsibility of the contractor and its
employees and should be dealt with in
the employment agreement, not through
the contract clause, as the Government
has no privity of contract directly with
the employees.
e. Contractor liability.
Comment: Several respondents are
concerned about unmitigated liability
for contractors in the event of injury or
loss of life resulting from intentional use
or accidental discharge of such
weapons. The Government should
indemnify and hold harmless the
contractor against all losses, costs,
claims, and causes of action relating to
the use of Government-furnished
weapons by contractor and/or
contractor’s employees. Unless the
Government has and exercises authority
to indemnify contractors and their
employees against all claims for damage
or injury and to ensure immunity from
criminal prosecution associated with
the use of weapons during deployment
operations, the proposed clause should
be modified to prohibit the issuance of
weapons to contractor personnel.
DoD Response: Nonconcur. The
clause in no way obligates contractors to
allow their employees to carry weapons.
Contractor personnel will only carry
weapons if the contractor requests that
its employees be allowed to carry
weapons and the combatant commander
authorizes the carrying of weapons. DoD
cannot indemnify contractors and their
personnel against all claims for damage
or injury or ensure immunity from
criminal prosecution associated with
the use of weapons. Decisions to
indemnify are made in accordance with
FAR 50.403–1.
f. Specified contractor employees.
Comment: The word ‘‘specified’’ is
not clear and could be interpreted to
mean the Government specifies which
contractor personnel would be issued
the firearm, which the Government is
not allowed to do.
DoD Response: Concur in part. The
clause has been amended to clearly state
that it is the contractor’s responsibility
to request that its personnel in the
theater of operations be authorized to
carry weapons. Therefore, it would be
up to the contractor to determine which
specific employees will be authorized to
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carry weapons and the criteria for that
authorization.
g. Redeployment or revocation.
Comment: Upon termination of the
commander’s authority, the contractor is
required to return any Governmentissued firearms according to the
direction given by the contracting
officer. One respondent requests that, if
the employee is permitted to carry
contractor-issued firearms, the
employee must cease carrying those
firearms and must follow contractorprovided direction for their disposition.
DoD Response: Nonconcur in part. It
is the contractor’s responsibility to
direct the disposition of contractorprovided weapons.
h. DD Form 2760.
Comment: One respondent
recommends required use of DD Form
2760 when weapons are issued, to
ensure compliance with the Lautenberg
amendment regarding domestic violence
convictions.
DoD Response: Partially concur. The
clause requires the contractor to ensure
that its personnel who are authorized to
carry weapons are not barred from
possession of a firearm by 18 U.S.C. 922.
The draft DoD Instruction on Procedures
for the Management of Contingency
Contractor Personnel During
Contingency Operations proposes
additional requirements for contracted
security services, including submission
of a DD Form 2760 (Qualification to
Possess Firearms and Ammunition) for
each individual employee that will be
providing the security services.
19. Next of Kin (252.225–70XX(j))
(252.225–7040(n))
a. ‘‘In-person notification.’’
Comment: Several respondents have
concerns about the requirement for inperson notification.
DoD Response: Concur. It is the
responsibility of the contractor to
determine how to notify its employee’s
next of kin.
b. Notify the contracting officer.
Comment: One respondent also
suggests adding a requirement that the
contractor inform the contracting officer
if the contractor is informed through
other than Government channels of the
death, injury, or capture of one of its
employees, or if the employee appears
to be missing, so the Government can
take action to verify and provide
support as appropriate.
DoD Response: Concur in part. The
contractor is already required to notify
the contracting officer, because the
contractor has a responsibility to keep
current personnel data in accordance
with paragraph (g) of the clause.
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c. Point of contact for continuing
support.
Comment: Personnel Recovery Policy
OSD/Defense requires that, in the case
of a missing or captured contractor, the
Government will assign an official point
of contact to the next of kin for
continuing support, and provision of
information, as appropriate and proper.
DoD Response: Concur. In the case of
missing, captured, or abducted
contractor personnel, the Government
will assist in personnel recovery actions
in accordance with DoD Directive
2310.2, Personnel Recovery.
20. Evacuation of Bodies (252.225–
XX(k)) (252.225–7040(o)) DoDD 1300.22
Comment: Several respondents
believe that the clause places an undue
burden on the contractor and does not
adequately address Government
responsibilities or procedures; question
the meaning of ‘‘point of identification’’;
and request that the clause be in
accordance with DoDD 1300.22,
Mortuary Affairs Policy.
DoD Response: Concur. DoD has
modified the clause to state that
mortuary affairs will be handled in
accordance with DoD Directive 1300.22.
21. Evacuation (252.225–70XX (l))
(252.225–7040(m))
a. Mandatory evacuation.
Comment: Some respondents want to
add, after ‘‘Combatant Commander,’’ the
phrase ‘‘or other competent authority’’
or ‘‘or other authority over the U.S.
Forces.’’
DoD Response: Nonconcur. The
combatant commander has the authority
to delegate within the military chain of
command. If the ambassador orders an
evacuation, that is the intervention of a
sovereign authority and the obligation to
comply is not created by the contract.
Procedures for evacuation are provided
for in other regulations and are outside
the scope of this rule.
Comment: Another respondent states
that if the Government decides to
evacuate contractor personnel, the
Government should furnish
transportation to do so.
DoD Response: Concur in part. The
clause provides that the Government
will provide assistance to the extent
feasible to United States and third
country national contractor personnel.
Government guaranteed evacuation may
or may not be possible in a fluid
situation. Setting forth a promise that
the Government may not be able to meet
would be misleading to potential
employees.
b. Nonmandatory evacuation—
continued contract performance.
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Comment: One respondent wants
evacuation of contractor personnel and
their dependents whenever conditions
cause the United States to issue travel
warnings or permit voluntary
evacuation of non-essential U.S.
Government personnel and dependants.
DoD Response: Nonconcur. The
situations covered by this clause are not
the type of situations in which DoD
envisions that contractor personnel
would have dependents with them. The
Contractor has been warned in
paragraph (b) about the risks of
supporting the force in such operations,
and contractor personnel who are
unwilling to accept these risks should
not be in these positions.
Comment: Another respondent
requests modification of paragraph (l) to
allow for evacuation of contractor
employees due to the inherent dangers
associated with job performance during
deployment. This change is necessary to
meet legal requirements that an
employer provide a safe workplace for
employees. Any clause governing
deployment of contractor personnel
should contain language excusing
contractor performance in the event of
refusal of contractor personnel to
accompany the force or to perform work
upon deployment.
DoD Response: Nonconcur. Since
these are contracts to support the war
fighter, by their nature these contracts
are likely to involve some risk. It is the
contractor’s responsibility to ensure that
it has willing personnel to fulfill the
contract terms.
Comment: Several respondents
recommend inserting ‘‘essential’’
between ‘‘meet’’ and ‘‘contractual’’ in
the final sentence.
DoD Response: Nonconcur. A
nonmandatory evacuation will not
necessarily constitute a crisis situation
as defined in DoDI 3020.37. DoD has
added PGI guidance regarding
identification in the contract of mission
essential services that would require
continued performance during crisis
situations outside the United States. If
the contract specifies which mission
essential services must be continued
during a crisis situation, and the nonmandatory evacuation order is during a
crisis situation, then meeting the
contractual obligations will only entail
the continued performance of mission
essential services. If the contract does
not specify which services are mission
essential, or the situation is not a crisis,
the contracting officer can still designate
that certain contractor personnel may
leave.
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22. Insurance (252.225–70XX(m))
(deleted from 252.225–7040)
a. Contractor responsibility for
employee’s personal insurance policies.
Comment: Several respondents object
to this paragraph in the proposed rule,
finding that it is confusing. One
respondent finds an erroneous inference
that contractors will or do provide
employees with personal insurance
policies over and above companysponsored coverage, or that the
contractor is responsible for any gaps
that may exist in personal coverage.
Several respondents believe that
paragraph (m), placing responsibility on
the contractor for all issues dealing with
the exclusions contained in an
employee’s personal insurance policies,
conflicts with the statutory
requirements and protections of the
Defense Base Act, 42 U.S.C. 1651 et seq.,
and the War Hazards Compensation Act,
42 U.S.C. 1701 et seq.
DoD Response: Concur in part. DoD
agrees that the language is somewhat
confusing and open to
misinterpretation, and has therefore
removed this paragraph in the final rule.
b. Defense Base Act, War Hazards
Compensation Act, and other workers’
compensation programs.
Comment: Some respondents
recommend that the clause make
reference to existing FAR and DFARS
clauses regarding the Defense Base Act
clauses and various workers’
compensation programs. In doing so,
contractors may avoid purchasing
unnecessary coverage, the cost of which
is passed to the Government. One
respondent recommends that each of the
clauses implementing the Defense Base
Act and the War Hazards Compensation
Act be identified for mandatory
inclusion in contracts covered by this
clause.
DoD Response: Concur in part. DoD
has included guidance in PGI regarding
additional clauses to consider when
using the clause at DFARS 252.225–
7040. The PGI guidance recommends
consideration of either the clause at
FAR 52.228–3, Worker’s Compensation
Insurance (Defense Base Act), or the
clause at FAR 52.228–4, Worker’s
Compensation and War Hazard
Insurance, in accordance with the
clause prescriptions at FAR 28.309(a)
and (b); use of the clause at FAR
52.228–7, Insurance-Liability to Third
Persons, in cost-reimbursement
contracts as prescribed at DFARS
228.311–1; and use of the clauses at
FAR 52.251–1, Government Supply
Sources, as prescribed at FAR 51.107,
and DFARS 252.251–7000, Ordering
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23799
from Government Supply Sources, as
prescribed at DFARS 251.107.
Additionally, all other appropriate
FAR and DFARS clauses will be
included in the contract consistent with
the prescriptions as to situations where
they are applicable. This clause does not
need to repeat the prescriptions for use
of clauses that are already in the FAR
and DFARS.
c. Government should facilitate larger
risk pool.
Comment: One respondent believes
that additional insurance coverage for
war hazards, normally excluded from
group life insurance policies, should be
an allowable cost and recommends that
the Government establish a mechanism
for facilitating that coverage on an
industry-wide basis in order to allow
contractors to pool purchasing power.
DoD Response: Outside scope. The
suggestions set forth, even if they were
beneficial, are beyond the charter and
authority of the DAR Council. DoD is
participating in an interagency group,
chaired by the Department of State, that
is looking into insurance issues related
to the Iraqi reconstruction.
23. Processing and Departure Points
(252.225–70XX(n)) (252.225–7040(f))
a. Purpose of deployment processing.
Comment: One respondent
recommended adding a sentence to state
the purpose of deployment processing.
DoD Response: Concur. DoD has
added language stating the purpose of
deployment processing.
b. Joint Reception Center.
Comment: Another respondent
suggests adding language about the
Government notifying contractor
personnel of all specific policies and
requirements for personnel operating
within the theater of deployment (IAW
Joint Pub 4–0, Doctrine for Logistics
Support of Joint Operations, Chapter V,
Contractors in Theater).
DoD Response: Concur. The
requirement to process through a Joint
Reception Center in the theater of
operations has been added to the clause.
24. Scarce Goods and Services
(252.225–70XX(o)) (252.225–7040(l))
a. Afford excusable delay relief and
equitable adjustment allowance.
Comment: One respondent expresses
a concern that, if a contractor is not able
to obtain scarce items in order to meet
contract performance, this will impact
the ability of the contractor to meet the
terms and conditions of the contract,
and that a contractor should be afforded
an excusable delay and allowance for an
equitable adjustment.
DoD Response: Concur in part. DoD
has revised the clause language to
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provide greater latitude to contractors
for acquiring goods and services, so that
they are not put in an untenable
position. However, the processes and
procedures for an equitable adjustment
are already sufficiently covered under
existing acquisition rules and
regulations.
b. Let contractor know about scarce
commodities prior to contract
formation.
Comment: Such requirements to
obtain approval of scarce commodities
from the combatant commander’s
purchase review committee should be
provided to the contractor prior to
contract formation.
DoD Response: Concur in part. It is a
good idea to provide this information in
advance when available, but it is
impossible to know all of the military
operations that will occur during the
period of performance on any specific
contract, and it is not possible for the
Government to provide contractors an
advance listing of all those commodities
that will be considered scarce.
c. Acquisition of weapons,
ammunition, and personal protective
gear.
Comment: One respondent is
concerned that this language could
prohibit or impede Private Security
Companies from meeting their contract
requirements and could compromise the
physical safety of personnel.
DoD Response: Nonconcur. This
paragraph in the clause covers local
purchases of scarce goods such as clean
water, fresh food, or building materials
that might be in scarce supply in the
local area, not weapons, ammunition,
and personal protective gear. The clause
has been revised to clarify that the
contractor must coordinate local
purchases of goods and services.
d. Further revision.
In addition, DoD has expanded the
clause to cover scarce services, such as
translators.
25. Changes (252.225–70XX(p) and (q))
(252.225–7040(p))
a. Object to paragraphs (p) and (q) of
252.225–70XX.
Comment: Many respondents had
concerns about paragraphs (p) and (q).
They are concerned that these
paragraphs went beyond the ‘‘Changes’’
clause, to include what the contractor
may consider out-of-scope changes. This
could lead to the appearance of a
personal services contract. Paragraph (p)
could violate the Competition in
Contracting Act and may lead to
unauthorized commitments. The
language raises questions about the
Antideficiency Act in situations where
the emergency exception may not apply.
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The contractor should not be put in
position of determining whose orders
take precedence (contracting officer or
combatant commander) or whether a
commander giving an order has
appropriate authority.
DoD Response: Concur. The proposed
language is not consistent with existing
procurement law and policy. DoD has
substantially revised paragraph (p) and
deleted the paragraph (q) that was in the
clause in the proposed rule.
b. Generally support the inclusion of
(p) and (q), but recommended clarifying
or expanding.
Comment: Some respondents support
providing authority for the military
commander to have the flexibility to
direct contractors, recommend
expanding it to make it available to the
lowest level of military command, and
recommend expanding it beyond its
limitations to ‘‘all transportation,
logistical and support requirements.’’
They recommend inclusion of a
provision that prevents combatant
commanders from ordering contractors
to engage in armed conflict; recommend
that paragraph (q) address all changes in
emergency situations; and recommend
that contractors be excused from
complying with any order or directive
that the contractor reasonably believes
is contrary to law or international treaty.
It is imperative that actions by
commanders that are inconsistent with
the contract be recognized as changes.
The rule should make clear what types
of direction a combatant commander
may issue and should add language that
requires 48-hour notification by the
contractor to the contracting officer’s
representative.
DoD Response: Nonconcur. DoD does
not recommend any revisions or
expansions to the authorities of the
combatant commander in paragraphs (p)
and (q) of the clause in the proposed
rule. The authority of combatant
commanders to issue instructions is not
dependent on contract provisions.
Therefore, it is out of scope to address
in this rule their authorities relative to
hostile or non-hostile environments, or
to address any documentation
requirements flowing from their
exercising such authority.
Instead of paragraphs (p) and (q) of
the clause in the proposed rule, DoD has
added a new paragraph (p) that refers to
the Changes clause of the contract, but
adds provision for coverage of changes
in Government-furnished facilities,
equipment, material, services, or site.
c. Generally agree with equitable
adjustment for changes but recommend
changes in wording or scope.
Comment: Several respondents
request revision of the proposed clause
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to address the fundamental issue of
reimbursement to the contractor for
additional costs and risks associated
with deployment of contractor
personnel. One respondent requests an
equitable adjustment for continued
contract performance, which would
require segregation of all costs incurred
in support of deployed military forces
involved in humanitarian,
peacekeeping, contingency, or combat
operations.
Another respondent recommends
addition of language that would require
the contracting officer to approve
requests for equitable adjustment,
absent fraud, falsehood, or willful
misconduct on the contractor’s part.
One respondent recommends addition
of a new paragraph allowing the
contractor to request equitable
adjustment for unexpected costs beyond
their reasonable control. Another
respondent is concerned that the
proposed rule would limit the ability of
a contractor to submit a request for
equitable adjustment to the situations
described in (p) and (q). Therefore, other
types of claims such as for delay and
disruption or for third-party liability not
covered by insurance appear to be
proscribed.
DoD Response: Nonconcur. The
authority of a combatant commander to
issue orders is not a function of contract
language, and remedies for additional
costs incurred, if they exist, are either
addressed by existing procurement laws
and regulations (e.g., constructive
changes doctrine) or found in noncontractual remedies. As already stated,
DoD has substantially modified
paragraph (p) and deleted paragraph (q)
in its entirety, and reaffirmed reliance
on the Changes clause of the contract.
26. Subcontracts (252.225–70XX(r))
(252.225–7040(q))
Comment: Some respondents are
concerned about the impact this
paragraph would have on subcontracts
if the whole clause is flowed down.
There is concern that this paragraph
commits the Government to undertake
affirmative support of such
subcontractors. Some respondents
question how privity of contract
between the prime and their
subcontracts will be handled when
combatant commanders or senior
military personnel give directions to
subcontract personnel.
DoD Response: The intent of most of
the areas addressed under this clause is
to ensure that all contractor personnel,
prime and subcontract personnel, who
accompany and support the force have
the kind of support they need to ensure
their safety and security. The intent is
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not for the Government to establish a
privity of contract relationship with the
subcontractors. Furthermore, paragraph
(p) has been substantially modified and
(q) of the clause in the proposed rule
has been deleted.
27. Paperwork Reduction
Comment: Only one respondent
commented on the information
collection requirements of the proposed
rule. That respondent considers that the
proposed rule constitutes an
information collection requirement
which imposes a burden on contractors
because, in the event of direction issued
to a contractor by a Government official
other than a contracting officer, the
contractor must comply with FAR
43.104, Notification of contract changes.
The respondent contends that the
proposed clause provides authority for
combatant commanders and hundreds
of subordinate military commanders to
issue orders to the contractor, for which
the contractor must execute notices and
records as required by FAR 43.104.
DoD Response: Nonconcur. The
clause at 52.243–7, Notification of
Changes, already has an approved
information collection requirement
burden under OMB Clearance Number
9000–026, which covers all Government
agencies that use the FAR clause.
Moreover, with the removal of
paragraph (q) from the final clause,
there should no more than an average
number of such notifications required.
This rule was not subject to Office of
Management and Budget review under
Executive Order 12866, dated
September 30, 1993.
B. Regulatory Flexibility Act
DoD certifies that this final rule will
not have a significant economic impact
on a substantial number of small entities
within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq.,
because this rule does not impose
economic burdens on contractors. The
purpose and effect of this rule is to
relieve the current perceived burden on
contractors operating in a contingency
environment without consistent DoD
guidance or a standardized clause. By
establishing a standardized clause,
spelling out the standardized rules such
as the need for a Letter of Authorization,
and providing specific guidelines on
force protection and resuscitative
medical care, this rule effectively
reduces the burden on small businesses.
It establishes a framework within which
it will be easier for contractors to
operate overseas. In addition, the
availability of Government deployment
centers in the United States will make
it easier for small businesses to meet all
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deployment requirements. DoD did not
receive any comments with regard to the
Regulatory Flexibility Act or the impact
of the proposed rule on small
businesses.
C. Paperwork Reduction Act
This rule does not impose any new
information collection requirements that
require the approval of the Office of
Management and Budget under 44
U.S.C. 3501, et seq. Although the clause
requires contractors to maintain (1) a
current plan on file showing how the
contractor would replace employees
who are unavailable for deployment or
who need to be replaced during
deployment, and (2) a current list of all
employees in the area of operations in
support of the military force, DoD
believes that these requirements are
usual and customary and do not exceed
what a contractor would maintain in the
normal course of business.
List of Subjects in 48 CFR Parts 207,
212, 225, and 252
Government procurement.
Michele P. Peterson,
Editor, Defense Acquisition Regulations
System.
Therefore, 48 CFR Parts 207, 212, 225,
and 252 are amended as follows:
I
23801
212.301 Solicitation provisions and
contract clauses for the acquisition of
commercial items.
*
*
*
*
*
(f) * * *
(vii) Use the clause at 252.225–7040,
Contractor Personnel Supporting a
Force Deployed Outside the United
States, as prescribed in 225.7402–4.
(viii) Use the clause at 252.225–7043,
Antiterrorism/Force Protection Policy
for Defense Contractors Outside the
United States, in solicitations and
contracts that include the clause at
252.225–7040.
PART 225—FOREIGN ACQUISITION
4. Section 225.802–70 is revised to
read as follows:
I
225.802–70 Contracts for performance
outside the United States and Canada.
Follow the procedures at PGI
225.802–70 when placing a contract
requiring performance outside the
United States and Canada. Also see
Subpart 225.74, Defense Contractors
Outside the United States.
5. Subpart 225.74 is revised to read as
follows:
I
Subpart 225.74—Defense Contractors
Outside the United States
PART 207—ACQUISITION PLANNING
Sec.
225.7401 General.
I 1. The authority citation for 48 CFR
225.7402 Contractor personnel supporting a
Parts 207, 212, 225, and 252 continues to
force deployed outside the United States.
read as follows:
225.7402–1 Scope.
225.7402–2 Definitions.
Authority: 41 U.S.C. 421 and 48 CFR
Chapter 1.
225.7402–3 Government support.
225.7402–4 Contract clauses.
225.7403 Antiterrorism/force protection.
I 2. Section 207.105 is amended by
225.7403–1 General.
adding paragraph (b)(19)(E) to read as
225.7403–2 Contract clause.
follows:
207.105
plans.
Contents of written acquisition
*
*
*
*
*
(b) * * *
(19) * * *
(E) Special considerations for
acquisition planning for crisis situations
outside the United States. Ensure that
the requirements of DoD Instruction
3020.37, Continuation of Essential DoD
Contractor Services During Crises, are
addressed. Also see the guidance at PGI
207.105(b)(19)(E).
PART 212—ACQUISITION OF
COMMERCIAL ITEMS
3. Section 212.301 is amended by
adding paragraphs (f)(vii) and (viii) to
read as follows:
I
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225.7401
General.
(a) If an acquisition requires
performance of work in a foreign
country by U.S. personnel or a third
country contractor, follow the
procedures at PGI 225.7401(a).
(b) For work performed in Germany,
eligibility for logistics support or base
privileges of contractor employees is
governed by U.S.-German bilateral
agreements. Follow the procedures in
Army in Europe Regulation 715–9,
available at https://
www.per.hqusareur.army.mil/cpd/
docper/default.htm.
(c) For work performed in Japan or
Korea, see PGI 225.7401(c) for
information on bilateral agreements and
policy relating to contractor employees
in Japan or Korea.
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225.7402 Contractor personnel supporting
a force deployed outside the United States.
under the contract. For a sample LOA,
see PGI 225.7402–3(c).
225.7402–1
225.7402–4
Scope.
This section applies to contracts
requiring contractor personnel to deploy
with or otherwise provide support in
the theater of operations to U.S. military
forces deployed outside the United
States in—
(a) Contingency operations;
(b) Humanitarian or peacekeeping
operations; or
(c) Other military operations or
exercises designated by the combatant
commander.
225.7402–2
Definitions.
Combatant commander and theater of
operations, as used in this section, have
the meaning given in the clause at
252.225–7040, Contractor Personnel
Supporting a Force Deployed Outside
the United States.
225.7402–3
Government support.
(a) Government support that may be
authorized or required for contractor
personnel performing in a theater of
operations may include, but is not
limited to, the types of support listed in
PGI 225.7402–3(a).
(b) The contracting officer shall—
(1) Ensure that the contract contains
valid terms, approved by the combatant
commander, that specify the responsible
party, if a party other than the
combatant commander is responsible for
providing protection to the contractor
personnel performing in the theater of
operations as specified in 225.7402–1;
(2) Specify in the terms of the
contract, if medical or dental care is
authorized beyond the standard
specified in paragraph (c)(2)(i) of the
clause at 252.225–7040, Contractor
Personnel Supporting a Force Deployed
Outside the United States;
(3) Provide direction to the contractor,
if the contractor is required to reimburse
the Government for medical treatment
or transportation of contractor personnel
to a selected civilian facility in
accordance with paragraph (c)(2)(ii) of
the clause at 252.225–7040; and
(4) Specify in the contract the exact
support to be authorized or required if
the Government authorizes or requires
contractor personnel to use any other
Government-provided support.
(c) Contractor personnel must have a
letter of authorization (LOA) issued by
a contracting officer in order to process
through a deployment center or to travel
to, from, or within the theater of
operations. The LOA also will identify
any additional authorizations,
privileges, or Government support that
the contractor personnel are entitled to
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Contract clauses.
(a) Use the clause at 252.225–7040,
Contractor Personnel Supporting a
Force Deployed Outside the United
States, in solicitations and contracts
when contract performance requires that
contractor personnel be available to
deploy with or otherwise provide
support in the theater of operations to
U.S. military forces deployed outside
the United States in—
(1) Contingency operations;
(2) Humanitarian or peacekeeping
operations; or
(3) Other military operations or
exercises designated by the combatant
commander.
(b) For additional guidance on clauses
to consider when using the clause at
252.225–7040, see PGI 225.7402–4(b).
225.7403
Antiterrorism/force protection.
225.7403–1
General.
Information and guidance pertaining
to DoD antiterrorism/force protection
policy for contracts that require
performance or travel outside the
United States can be obtained from the
offices listed in PGI 225.7403–1.
225.7403–2
Contract clause.
Use the clause at 252.225–7043,
Antiterrorism/Force Protection Policy
for Defense Contractors Outside the
United States, in solicitations and
contracts that require performance or
travel outside the United States, except
for contracts with—
(a) Foreign governments;
(b) Representatives of foreign
governments; or
(c) Foreign corporations wholly
owned by foreign governments.
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
6. Section 252.225–7040 is added to
read as follows:
I
252.225–7040 Contractor Personnel
Supporting a Force Deployed Outside the
United States.
As prescribed in 225.7402–4(a), use
the following clause:
Contractor Personnel Supporting a Force
Deployed Outside the United States (Jun
2005)
(a) Definitions. As used in this clause—
Combatant Commander means the
commander of a unified or specified
combatant command established in
accordance with 10 U.S.C. 161.
Theater of operations means an area
defined by the combatant commander for the
conduct or support of specific operations.
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(b) General. (1) This clause applies when
contractor personnel deploy with or
otherwise provide support in the theater of
operations to U.S. military forces deployed
outside the United States in—
(i) Contingency operations;
(ii) Humanitarian or peacekeeping
operations; or
(iii) Other military operations or exercises
designated by the Combatant Commander.
(2) Contract performance in support of U.S.
military forces may require work in
dangerous or austere conditions. The
Contractor accepts the risks associated with
required contract performance in such
operations.
(3) Contractor personnel are not
combatants and shall not undertake any role
that would jeopardize their status. Contractor
personnel shall not use force or otherwise
directly participate in acts likely to cause
actual harm to enemy armed forces.
(c) Support. (1) The Combatant
Commander will develop a security plan to
provide protection, through military means,
of Contractor personnel engaged in the
theater of operations unless the terms of this
contract place the responsibility with another
party.
(2)(i) All Contractor personnel engaged in
the theater of operations are authorized
resuscitative care, stabilization,
hospitalization at level III military treatment
facilities, and assistance with patient
movement in emergencies where loss of life,
limb, or eyesight could occur. Hospitalization
will be limited to stabilization and short-term
medical treatment with an emphasis on
return to duty or placement in the patient
movement system.
(ii) When the Government provides
medical treatment or transportation of
Contractor personnel to a selected civilian
facility, the Contractor shall ensure that the
Government is reimbursed for any costs
associated with such treatment or
transportation.
(iii) Medical or dental care beyond this
standard is not authorized unless specified
elsewhere in this contract.
(3) Unless specified elsewhere in this
contract, the Contractor is responsible for all
other support required for its personnel
engaged in the theater of operations under
this contract.
(d) Compliance with laws and regulations.
The Contractor shall comply with, and shall
ensure that its personnel supporting a force
deployed outside the United States as
specified in paragraph (b)(1) of this clause are
familiar with and comply with, all
applicable—
(1) United States, host country, and third
country national laws;
(2) Treaties and international agreements;
(3) United States regulations, directives,
instructions, policies, and procedures; and
(4) Orders, directives, and instructions
issued by the Combatant Commander relating
to force protection, security, health, safety, or
relations and interaction with local nationals.
(e) Pre-deployment requirements. The
Contractor shall ensure that the following
requirements are met prior to deploying
personnel in support of U.S. military forces.
Specific requirements for each category may
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Federal Register / Vol. 70, No. 86 / Thursday, May 5, 2005 / Rules and Regulations
be specified in the statement of work or
elsewhere in the contract.
(1) All required security and background
checks are complete and acceptable.
(2) All deploying personnel meet the
minimum medical screening requirements
and have received all required
immunizations as specified in the contract.
The Government will provide, at no cost to
the Contractor, any theater-specific
immunizations and/or medications not
available to the general public.
(3) Deploying personnel have all necessary
passports, visas, and other documents
required to enter and exit a theater of
operations and have a Geneva Conventions
identification card from the deployment
center.
(4) Country and theater clearance is
obtained for personnel. Clearance
requirements are in DoD Directive 4500.54,
Official Temporary Duty Abroad, and DoD
4500.54–G, DoD Foreign Clearance Guide.
Contractor personnel are considered nonDoD personnel traveling under DoD
sponsorship.
(f) Processing and departure points.
Deployed contractor personnel shall—
(1) Process through the deployment center
designated in the contract, or as otherwise
directed by the Contracting Officer, prior to
deploying. The deployment center will
conduct deployment processing to ensure
visibility and accountability of contractor
personnel and to ensure that all deployment
requirements are met;
(2) Use the point of departure and
transportation mode directed by the
Contracting Officer; and
(3) Process through a Joint Reception
Center (JRC) upon arrival at the deployed
location. The JRC will validate personnel
accountability, ensure that specific theater of
operations entrance requirements are met,
and brief contractor personnel on theaterspecific policies and procedures.
(g) Personnel data list. (1) The Contractor
shall establish and maintain with the
designated Government official a current list
of all contractor personnel that deploy with
or otherwise provide support in the theater
of operations to U.S. military forces as
specified in paragraph (b)(1) of this clause.
The Contracting Officer will inform the
Contractor of the Government official
designated to receive this data and the
appropriate automated system(s) to use for
this effort.
(2) The Contractor shall ensure that all
employees on the list have a current DD
Form 93, Record of Emergency Data Card, on
file with both the Contractor and the
designated Government official.
(h) Contractor personnel. (1) The
Contracting Officer may direct the
Contractor, at its own expense, to remove and
replace any contractor personnel who
jeopardize or interfere with mission
accomplishment or who fail to comply with
or violate applicable requirements of this
clause. Such action may be taken at the
Government’s discretion without prejudice to
its rights under any other provision of this
contract, including the Termination for
Default clause.
(2) The Contractor shall have a plan on file
showing how the Contractor would replace
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14:24 May 04, 2005
Jkt 205001
employees who are unavailable for
deployment or who need to be replaced
during deployment. The Contractor shall
keep this plan current and shall provide a
copy to the Contracting Officer upon request.
The plan shall—
(i) Identify all personnel who are subject to
military mobilization;
(ii) Detail how the position would be filled
if the individual were mobilized; and
(iii) Identify all personnel who occupy a
position that the Contracting Officer has
designated as mission essential.
(i) Military clothing and protective
equipment. (1) Contractor personnel
supporting a force deployed outside the
United States as specified in paragraph (b)(1)
of this clause are prohibited from wearing
military clothing unless specifically
authorized in writing by the Combatant
Commander. If authorized to wear military
clothing, Contractor personnel must wear
distinctive patches, arm bands, nametags, or
headgear, in order to be distinguishable from
military personnel, consistent with force
protection measures and the Geneva
Conventions.
(2) Contractor personnel may wear
military-unique organizational clothing and
individual equipment (OCIE) required for
safety and security, such as ballistic, nuclear,
biological, or chemical protective clothing.
(3) The deployment center, or the
Combatant Commander, shall issue OCIE and
shall provide training, if necessary, to ensure
the safety and security of contractor
personnel.
(4) The Contractor shall ensure that all
issued OCIE is returned to the point of issue,
unless otherwise directed by the Contracting
Officer.
(j) Weapons. (1) If the Contractor requests
that its personnel performing in the theater
of operations be authorized to carry weapons,
the request shall be made through the
Contracting Officer to the Combatant
Commander. The Combatant Commander
will determine whether to authorize intheater contractor personnel to carry
weapons and what weapons will be allowed.
(2) The Contractor shall ensure that its
personnel who are authorized to carry
weapons—
(i) Are adequately trained;
(ii) Are not barred from possession of a
firearm by 18 U.S.C. 922; and
(iii) Adhere to all guidance and orders
issued by the Combatant Commander
regarding possession, use, safety, and
accountability of weapons and ammunition.
(3) Upon redeployment or revocation by
the Combatant Commander of the
Contractor’s authorization to issue firearms,
the Contractor shall ensure that all
Government-issued weapons and
unexpended ammunition are returned as
directed by the Contracting Officer.
(k) Vehicle or equipment licenses.
Contractor personnel shall possess the
required licenses to operate all vehicles or
equipment necessary to perform the contract
in the theater of operations.
(l) Purchase of scarce goods and services.
If the Combatant Commander has established
an organization for the theater of operations
whose function is to determine that certain
PO 00000
Frm 00029
Fmt 4700
Sfmt 4700
23803
items are scarce goods or services, the
Contractor shall coordinate with that
organization local purchases of goods and
services designated as scarce, in accordance
with instructions provided by the
Contracting Officer.
(m) Evacuation. (1) If the Combatant
Commander orders a mandatory evacuation
of some or all personnel, the Government
will provide assistance, to the extent
available, to United States and third country
national contractor personnel.
(2) In the event of a non-mandatory
evacuation order, unless authorized in
writing by the Contracting Officer, the
Contractor shall maintain personnel on
location sufficient to meet obligations under
this contract.
(n) Next of kin notification and personnel
recovery. (1) The Contractor shall be
responsible for notification of the employeedesignated next of kin in the event an
employee dies, requires evacuation due to an
injury, or is missing, captured, or abducted.
(2) In the case of missing, captured, or
abducted contractor personnel, the
Government will assist in personnel recovery
actions in accordance with DoD Directive
2310.2, Personnel Recovery.
(o) Mortuary affairs. Mortuary affairs for
contractor personnel who die while
providing support in the theater of operations
to U.S. military forces will be handled in
accordance with DoD Directive 1300.22,
Mortuary Affairs Policy.
(p) Changes. In addition to the changes
otherwise authorized by the Changes clause
of this contract, the Contracting Officer may,
at any time, by written order identified as a
change order, make changes in Governmentfurnished facilities, equipment, material,
services, or site. Any change order issued in
accordance with this paragraph (p) shall be
subject to the provisions of the Changes
clause of this contract.
(q) Subcontracts. The Contractor shall
incorporate the substance of this clause,
including this paragraph (q), in all
subcontracts that require subcontractor
personnel to be available to deploy with or
otherwise provide support in the theater of
operations to U.S. military forces deployed
outside the United States in—
(1) Contingency operations;
(2) Humanitarian or peacekeeping
operations; or
(3) Other military operations or exercises
designated by the Combatant Commander.
(End of clause)
252.225–7043
[Amended]
7. Section 252.225–7043 is amended in
the introductory text by removing
‘‘225.7402’’ and adding in its place
‘‘225.7403–2’’.
I
[FR Doc. 05–9007 Filed 5–4–05; 8:45 am]
BILLING CODE 5001–08–P
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05MYR1
Agencies
[Federal Register Volume 70, Number 86 (Thursday, May 5, 2005)]
[Rules and Regulations]
[Pages 23790-23803]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-9007]
=======================================================================
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DEPARTMENT OF DEFENSE
48 CFR Parts 207, 212, 225, and 252
[DFARS Case 2003-D087]
Defense Federal Acquisition Regulation Supplement; Contractor
Personnel Supporting a Force Deployed Outside the United States
AGENCY: Department of Defense (DoD).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: DoD has issued a final rule amending the Defense Federal
Acquisition Regulation Supplement (DFARS) to address issues related to
contract performance outside the United States. The rule contains a
clause for use in contracts that require contractor personnel to deploy
with or otherwise provide support in the theater of operations to U.S.
military forces deployed outside the United States in contingency
operations, humanitarian or peacekeeping operations, or other military
operations or exercises designated by the combatant commander.
DATES: Effective Date: June 6, 2005.
FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, Defense Acquisition
Regulations Council, OUSD (AT&L) DPAP (DAR), IMD 3C132, 3062 Defense
Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0328;
facsimile (703) 602-0350. Please cite DFARS Case 2003-D087.
SUPPLEMENTARY INFORMATION:
A. Background
This final rule contains DFARS policy relating to contracts that
require contractor personnel to deploy with or otherwise provide
support in the theater of operations to U.S. military forces deployed
outside the United States in contingency operations, humanitarian or
peacekeeping operations, or military operations or exercises designated
by the combatant commander. In addition, as a result of the DFARS
Transformation
[[Page 23791]]
initiative, this rule moves text from DFARS 225.802-70 and 225.7401 to
the new DFARS companion resource, Procedures, Guidance, and Information
(PGI), available at https://www.acq.osd.mil/dpap/dars/pgi.
DoD published a proposed rule at 69 FR 13500 on March 23, 2004.
Twenty-six sources submitted comments on the proposed rule. This final
rule includes changes made as a result of public comments and as a
result of comments received from within DoD. In addition, the
paragraphs of the new clause have been re-ordered to provide a more
logical sequence. The following is a synopsis of DoD's response to the
public comments and the changes made to the rule.
1. Scope
a. Too broad.
Comment: Several respondents believe that the rule is too broadly
written and that it attempts to cover too many disparate situations.
One respondent states that the rule should distinguish between
``combat'' and ``peacekeeping or humanitarian'' operations. Another
respondent also considers that contingency, humanitarian, peacekeeping,
and combat operations are potentially greatly dissimilar.
DoD Response: Nonconcur. The clause language is written in such a
way as to allow for its use in a wide range of military operations.
b. Too narrow.
Comment: Several respondents thought that the rule was too narrow.
One respondent recommends that the clause cover defense contractors
working mission essential services within the United States. The
respondent suggests that the clause incorporate the requirements of
DoDI 3020.37, Continuation of Essential DoD Contractor Services During
Crises. Another respondent believes that the rule should cover
``nation-'' and ``infrastructure-'' building.
DoD Response: Out of scope/Concur in part. DoD considers the first
comment to be out of scope because most of the requirements of the
clause would be inapplicable in the United States. Creation of a new
clause to implement DoDI 3020.37 as it applies to crises within the
United States is not within the scope of this case. With regard to the
second respondent, flexibility has been added to the scope by including
other military operations or exercises designated by the combatant
commander.
c. Further revision.
DoD has carefully considered how to accurately express the scope of
this case and has developed the following scope statement at 225.7402-
1:
``This section applies to contracts requiring contractor personnel
to deploy with or otherwise provide support in the theater of
operations to U.S. military forces deployed outside the United States
in--
(a) Contingency operations;
(b) Humanitarian or peacekeeping operations; or
(c) Other military operations or exercises designated by the
combatant commander.''
The new clause is intended to apply not only to contractor
personnel that ``accompany'' or ``deploy'' with the U.S. forces, but to
also cover ``support in the theater of operations.'' On the other hand,
it does not apply to contractor personnel providing support from
outside the theater of operations or to nation-building efforts such as
the reconstruction of Iraq. The term ``combat operations'' was removed,
as it is an undefined term, and ``other military operations or
exercises designated by the combatant commander'' was added to increase
flexibility. Application of this scope has caused revisions throughout
the rule, particularly in the title of the clause, the clause
prescription at 225.7402-4(a), and paragraphs (b) and (q) (as
redesignated in the final rule) of the clause (applicability and
subcontract flowdown).
2. Applicability to Other Nationals
Comment: One respondent comments that some of the requirements of
the proposed DFARS clause appear not to apply to either host country
contractor personnel or third country national contractor personnel.
DoD Response: Concur in part. DoD agrees that some requirements do
not apply to host country contractor personnel or third country
national contractor personnel. However, DoD considers that, in most
cases, the clause is already drafted in such a manner that it
specifies, when necessary, any limitations in the application to host
country contractor personnel and third country national contractor
personnel. With regard to compliance with laws and regulations, DoD has
added the word ``applicable.'' Thus, if a U.S. law is not applicable to
host country contractor personnel or third country national contractor
personnel, compliance is not required. The paragraphs on pre-deployment
and processing and departure point clearly apply only to those
employees who are deploying from the United States. The paragraph on
evacuation is already focused on employees from the United States and
third country national contractor personnel. All the other cited
paragraphs would apply equally to United States contractor personnel,
host country contractor personnel, and third country national
contractor personnel.
3. Equitable Adjustment
Comment: Many respondents brought up the potential need for
equitable adjustment due to the perceived risks to contractors in the
situations covered by this clause.
DoD Response: The need for equitable adjustment has been addressed
in the following specific areas where the respondents raised the issue:
government support, compliance with orders of the combatant commander,
contractor personnel, insurance, scarce commodities, and changes.
4. Need FAR Coverage
Comment: One respondent suggests that this clause would be
beneficial to the civilian side of the Federal Government (GSA, NIH,
DOI, etc.) who execute contracts for contractor support to accompany
the forces. It would also be beneficial to the Department of State and
the U.S. Agency for International Development, who deploy into
contingency or humanitarian operations. Therefore, the respondent
suggests either including authorization for other Federal agencies
procuring on behalf of DoD or other deployed federal agencies to
utilize the clause, or including it in the FAR.
DoD Response: Concur in part. We have no objection to any agency
using this clause, but it would be up to that agency to make the
decision. There is no prohibition against an agency adopting the clause
of another agency. It may also be a good idea to eventually include a
similar clause in the FAR but, because DoD has an urgent need for the
clause, implementation is limited to the DFARS at this time.
5. Fewer Contractor Personnel Should Accompany Deployed Forces
Comment: One respondent states that contractor support in theaters
of war should be limited to specialties that the military cannot or
does not have within its personnel inventory, such as technical support
for systems. Several respondents want to leave military operations to
military personnel, and recruit more soldiers, if necessary.
DoD Response: Out of scope. The purpose of this DFARS change is to
provide a clause to regulate contractor personnel supporting a deployed
force, not to determine the policy on which contractors should do so.
[[Page 23792]]
6. Need for a List of Other Clauses That Should Be Used With This
Clause
Comment: One respondent recommends revising the proposed rule to
ensure that other FAR and DFARS clauses that address performance
overseas are indicated as mandatory clauses, where applicable.
DoD Response: Concur in part. DoD has included at DFARS 225.7402-
4(b) a reference to guidance in PGI on clauses to consider when using
the new clause at DFARS 252.225-7040.
7. Contents of Written Acquisition Plans
Comment: One respondent suggests the rule explain ``how'' to
implement DoDI 3020.37, Continuation of Essential DoD Contractor
Services During Crises. The respondent stated that commanders and
contracting officers must attend to these questions during acquisition
planning.
DoD Response: Concur. A reference to PGI guidance on acquisition
planning for crisis situations outside the United States has been added
at DFARS 207.105(b)(19)(E).
8. Solicitation Provisions and Contract Clauses for the Acquisition of
Commercial Items
Comment: One respondent suggests that the final rule add to DFARS
212.301 the authority to use the clause at DFARS 252.225-7043,
Antiterrorism/Force Protection Policy for Defense Contractors Outside
the United States, in commercial item contracts awarded under FAR Part
12.
DoD Response: Concur. DoD has revised DFARS 212.301 to prescribe
use of the clause at DFARS 252.225-7043, Antiterrorism/Force Protection
Policy for Defense Contractors Outside the United States, in commercial
item contracts that include the clause at DFARS 252.225-7040. Although
the intent of FAR Part 12 is to keep contract requirements that are not
standard commercial practices to a minimum, authorizing inclusion of
this clause in commercial contracts when contractor personnel are
providing support in the theater of operations will minimize the risk
to personnel safety and the organization and, at the same time, make
completion of contract performance more efficient and effective. This
is important in contracts for acquisitions in high risk situations,
whether the items are commercial or noncommercial.
9. Defense Contractors Outside the United States--General
Comment: One respondent questions why the rule only specifically
addresses Germany. Several respondents request specific reference to
bilateral agreements with Japan and Korea and policies that have
application to contractor employees.
DoD Response: Concur. DoD has added 225.7401(c), with a reference
to PGI 225.7401(c) for work performed in Japan or Korea.
10. Definitions (252.225-70XX(a)) (252.225-7040(a))
a. ``Combatant commander.''
Comment: Several respondents discuss the use of the term
``combatant commander,'' which was defined in the proposed rule to
include subordinate commanders given authority by the combatant
commander to issue direction to contractors in a specified geographical
area or for a specific functional area.
DoD Response: Concur in part. Subordinate commanders have been
removed from the definition of ``combatant commander.'' It is still
possible for the combatant commander to delegate authority to a
subordinate commander. According to FAR 1.108(b), each authority in the
FAR (or DFARS) is delegable unless specifically stated otherwise.
Furthermore, paragraph (p) of the clause in the proposed rule has been
substantially modified, and paragraph (q) of the clause in the proposed
rule has been deleted, which will remove the conflicts regarding
contractors receiving direction from unidentified subordinate
commanders.
b. ``Combat operations.''
Comment: One respondent observes that in the prescription the term
``combat operations'' is used but no definition is provided.
DoD Response: Concur. ``Combat operations'' is not a defined term
in the DoD Dictionary of Military and Associated Terms, and has been
deleted from the final rule.
c. ``Contractors accompanying the force.''
Comment: Several respondents request the definition for
``accompanying a force.'' One respondent questions whether it is
applicable strictly to contractors accompanying a force on the move or
whether it also covers contractors situated in an area where military
forces are deployed.
DoD Response: The term ``accompanying the force'' is no longer
used. The phrase ``deploy with or otherwise provide support in the
theater of operations'' should answer the issues raised by the
respondents. It applies to contractor personnel situated in an area
where military forces are deployed, and to some extent, contractor
personnel in-transit, although some provisions would be applicable only
in the theater of operations. DoD uses the term ``in the theater of
operations'' rather than ``in country'' as the theater of operations
may not be restricted to a single country.
d. Further revision.
DoD has not included definitions for ``contingency operation'' and
``humanitarian or peacekeeping operation'' in the clause as they are
now automatically incorporated from FAR Part 2 by the new clause at FAR
52.202-1, Definitions (July 2004).
11. Shifts Risk to Contractors (252.225-70XX(b)) (252.225-7040(b))
Comment: Several respondents comment that the proposed rule
appeared to shift too much risk to contractors. One respondent comments
that the use of the term ``inherently dangerous'' in paragraph (b) of
the clause could jeopardize a contractor's ability to obtain insurance
coverage under the Defense Base Act and other provisions.
DoD Response: Concur in part. The term ``inherently dangerous''
overstates the intent of the rule. There was no intent to change the
law or to affect coverage under the Defense Base Act, the War Hazards
Compensation Act, or any other provision of law or regulation.
Paragraph (b)(2) of the clause has been changed to state that contract
performance in support of military forces may require work in dangerous
or austere conditions. If an independent contractor volunteers or
agrees to perform work in such a setting, the contractor must assume
responsibility to supervise its employees and to train and prepare them
to behave in as safe a mode as possible. Contractors must not directly
participate in hostilities against an armed enemy. The risk associated
with inherently Governmental functions will remain with the Government.
Contractors should resolve concerns about a specific contract during
pre-award negotiations.
12. Government Support
a. Government-provided support should be set forth in contract.
Comment: Several respondents comment that a contractor would not be
able to ascertain what is in an individual operation order.
DoD Response: Concur. The language stating ``or in the operation
order of the combatant commander'' has been removed.
Comment: Several respondents have concern about the effect of
paragraph (c)(2) of the clause in the proposed rule. They believe that
the Government should be required to specify in the
[[Page 23793]]
solicitation and resulting contract the types of Government-provided
support, if any, that will be required or authorized.
DoD Response: Concur in part. DoD concurs that Government-provided
support should be specified in the contract. Paragraph (c)(2) of the
clause has been deleted.
b. Changes in available support.
Comment: One respondent expresses concern relative to any deficit
(or unanticipated availability) that might arise between support
authorized in a contract and actual support available in a particular
theater. A second respondent notes that the combatant commander would
make the ultimate decision on providing resources to a contractor
regardless of what is in the contract. Another respondent recommends
adoption of additional language that will provide a mechanism for
handling delays or non-delivery of promised Government-provided support
similar to that utilized in the Government property clauses. The
respondent also recommends the adoption of language substantially
similar to that in the FAR Government property clauses that would
provide for equitable adjustment in the case of late or non-delivery of
promised support on commercial contracts under FAR Part 12, since such
contracts do not normally contain a Government property clause.
DoD Response: Concur in part. The rule should address potential
differences between Government-provided support anticipated at time of
contract/task/option award and actual support made available in the
theater of operations. Changes will be handled as specified in the
Changes clause of the contract, which will also cover changes in
Government-furnished facilities, equipment, material, services, or
site, as specified in paragraph (p) of the clause at 252.225-7040 in
the final rule. DoD does not concur with the recommendation to outline
the scope of any adjustment necessitated by changes in Government
support, since there is no intent to modify the already-existing
procedures inherent in any changes clause.
c. Lack of sufficient detail defining variety of support functions.
Comment: Several respondents believe that the subject provision is
lacking in sufficient detail on defining a variety of support
functions.
DoD Response: Partially concur. The final rule now implements DoD
policy that the combatant commander will develop a security plan to
provide protection, through military means, of contractor personnel
engaged in the theater of operations unless the terms of the contract
place the responsibility with another party. In addition, the clause
states that all contractor personnel engaged in the theater of
operations are authorized resuscitative care, stabilization,
hospitalization at level III military treatment facilities, and
assistance with patient movement in emergencies where loss of life,
limb, or eyesight could occur. Hospitalization will be limited to
stabilization and short-term medical treatment, with an emphasis on
return to duty or placement in the patient movement system. However,
the contractor is responsible for ensuring that the Government is
reimbursed for any costs associated with such treatment or
transportation.
The remaining language is deliberately non-specific in outlining
available Government support, since that can only be ascertained after
consultation with the relevant combatant command and service
components. The general types of support that should be considered are
outlined in the corresponding PGI coverage. Once adequate research
regarding availability of Government support is accomplished, the
contracting officer can then provide for such support in the resulting
contract.
d. Difficulty in ascertaining available support.
Comment: Several respondents suggest that DoD inform users how to
obtain the information necessary to specify support in a contract. This
will require a high degree of coordination between a contracting
officer and military organizations that would be responsible for
providing resources in an area of operations.
DoD Response: Partially concur. The new PGI guidance on acquisition
planning specifies that the requiring activity is responsible for
obtaining pertinent operation plans, operation orders, and annexes from
the affected combatant command or military service element, so that the
contract will be consistent.
e. Support should be commensurate with military personnel.
Comment: One respondent expresses concern that companies in many
cases do not, and cannot, provide in-country support for deployed
employees. They note that contractor personnel have received, and
should receive, support commensurate with the uniformed members with
whom they serve.
DoD Response: Nonconcur. The Government will only provide support
services that are available in the theater of operations concerned. To
the extent that such support is identifiable and known at time of
solicitation and award, it can be specified in the solicitation and
resulting contract. However, where unavailable from Government sources,
such support can only be provided by the contractor. Any contractor can
base its decision to submit a proposal on its own assessment of ability
to provide and price personnel support.
f. Contracting officer must communicate support requirements to
combatant commander.
Comment: One respondent presumes that the contracting officer would
have to communicate the support requirements to the combatant commander
for incorporation into an operation order.
DoD Response: Nonconcur. The contracting officer can only provide
for Government resources that are available to a combatant commander.
The language referring to support outlined in operation orders has been
deleted in response to another comment to avoid contractor confusion.
g. Which military organization will provide the support?
Comment: One respondent recommends adding a requirement for the
contracting officer to specify in the contract or task order the
military organizations that will provide support to a contractor, with
further description in PGI.
DoD Response: Nonconcur. It is unlikely that the annexes will be
specific in describing the individual military organizations that would
provide any contractor with support in defined areas. Hence, the
suggested additional language would be unworkable, particularly when
specifying Government-provided resources too far in advance of an
actual deployment.
h. Effect on Defense Base Act.
Comment: One respondent argues that the requirement for contractors
to generally provide their own in-theater support would make it even
more difficult for contractors to obtain Defense Base Act coverage.
DoD Response: The DAR Council believes that the type of support the
respondent is concerned about is force protection. It is DoD policy
that the combatant commander will develop a security plan to provide
protection through military means unless valid contract terms, approved
by the combatant commander, place the responsibility with another
party. DoD has modified 225.7402-3(a) and paragraph (c) of the clause
at 252.225-7040 to state this policy and to emphasize the fact that the
Government may provide the other types of support listed in PGI
225.7402-3(a) and that such support to be provided will be
[[Page 23794]]
specified in the contract. Also see the responses at paragraph 12.c and
the responses regarding insurance issues in paragraph 22.
i. Force protection.
Comment: One respondent expresses concern that the rule permits
contractors to hire other contractors who, in turn, will hire armies of
mercenaries (frequently local mercenaries) to provide force protection.
The respondent foresees that such mercenaries will attempt control of
the protection market, may be likely to put intelligence information at
risk, and will contribute to ``power politics'' in the particular
theater.
DoD Response: Nonconcur. As stated in the previous paragraph, it is
DoD policy to provide force protection to contractor employees
providing support in the theater of operations to U.S. military forces
unless valid contract terms, approved by the combatant commander, place
that responsibility with another party. Even though in some instances
contractors may be required to hire security and force protection, this
does not equate to ``armies of mercenaries.'' Every contractor will be
required to adhere to laws and regulations of the United States, the
host country, and third country laws, as well as orders, directives,
and instructions issued by the combatant commander relating to various
topics, including force protection. This requirement effectively
permits Government control over and minimization of the types of
excesses foreseen by this respondent.
13. Compliance With Laws and Regulations
a. Inaccessibility of information on applicable laws and
regulations.
Comment: Some respondents consider paragraph (d) of the clause to
be an unreasonable requirement because there is no reliable and
accessible source of information for contractors regarding all of the
laws (particularly host country and local laws) that may be applicable
to a contractor supporting a contingency or humanitarian effort. A
contractor may be asked to deploy to countries or areas of the world on
short notice without extended advance notice and without meaningful
access to information on relevant foreign and local laws. Contractors
are often denied access to the very information that would be required
to comply with this requirement because it is classified. One
respondent wants the Government to notify contractors in writing of all
the requirements with which the contractors are expected to comply,
other than laws and international treaties. The respondents are
concerned that internal Government policies, procedures, and directives
and instructions would not always be communicated by the Government to
the contractor.
DoD Response: Generally nonconcur. Paragraph (d) of the clause is a
reminder of the existing obligation for contractor personnel to comply
with the laws and regulations applicable to a contract. Contractors
have access to all of these laws and regulations and are bound to
comply with them. For example, analysis of the host country law is an
existing aspect of acquisition planning under FAR Part 7. Country
studies are available online at https://www.state.gov. Such available
online resources indicate that a contractor may independently ascertain
the laws and regulations necessary to comply with paragraph (d) of the
clause. A single resource for the laws and regulations enumerated in
paragraph (d) would be convenient to the contractor, but it would need
to be specific to each contract, it could easily inadvertently omit an
applicable law or regulation, and is in large part redundant to
available resources. However, DoD concurs that it needs to make
organizational improvements to improve the accessibility of contractors
to nonclassified portions of classified documents and orders of the
combatant commanders.
b. Conflicting requirements.
Comment: One respondent is concerned that it may be impossible to
comply with every applicable law, treaty, agreement, regulation,
directive, and instruction simultaneously because they are inconsistent
and contain conflicting provisions.
DoD Response: Nonconcur. Again, paragraph (d) of the clause is a
reminder of the existing obligation. Regardless of paragraph (d), it is
incumbent upon the contractor to make the best possible judgment in
deciding which law or regulation takes precedence in the case of
conflict.
c. Employees do not need to know.
Comment: One respondent notes that, while there may be a reason for
a contractor to have a basic understanding of the special laws and
policies related to performance of a contingency contract, there is
little need for all employees to have such comprehensive knowledge.
DoD Response: Concur in part. The contractor personnel need to have
sufficient knowledge of the laws and regulations that are applicable to
them, to avoid violating them in a foreign country. DoD has added a
qualifying phrase to focus the applicability to personnel ``supporting
a force deployed outside the United States as specified in paragraph
(b)(1)'' of the clause.
d. The contractor cannot verify compliance by individual employees.
Comment: One respondent comments that private business has no
ability to verify compliance with local law when its individual
employees are assigned to classified locations.
DoD Response: Nonconcur. The contractor is still responsible for
its employees.
e. Paragraph (d)(2) of the clause, Treaties and international
agreements (e.g., Status of Forces Agreements, Host Nation Support
Agreement, and Defense Technical Agreements).
Comment: The Geneva and Hague Conventions should be added to the
parenthetical.
DoD Response: Nonconcur. The treaties and international agreements
that are listed are some examples, not an exhaustive list. The problem
with examples is that they are not all inclusive, but are often
misinterpreted (i.e., if it is not listed, it doesn't apply).
Therefore, DoD has deleted the examples.
f. Paragraph (d)(4) of the clause, Orders, directives, and
instructions issued by the Combatant Commander relating to force
protection, security, health, safety, or relations and interaction with
local nationals.
Comment: One respondent states that the mandate in paragraph (d)(4)
that contractors comply with the ``orders, directives, and instructions
issued by the Combatant Commander'' puts the Commander in a position of
directing contract performance without actual contracting authority.
Another respondent suggests that a new subparagraph be added to read as
follows: ``The Government Contracting Officer or the Combatant
Commander is responsible for communicating to the Contractor any
applicable instructions, orders, directives, etc. to the Contractor and
Contractor's personnel. To the extent that compliance requirements
change after contract award, the contractor shall be entitled to an
equitable adjustment for any increased costs associated with those
costs.''
DoD Response: Nonconcur. The combatant commander acts in a position
of sovereign authority for issues relating to force protection,
security, health, and safety. If a contractor were driving a vehicle on
a street in the United States and a fire marshal directed the
contractor to take a detour because of a fire, the contractor would be
required to obey that order. The combatant commander has the authority
to serve as the single point of contact for such areas in the theater
of operations, since the
[[Page 23795]]
combatant commander is in the best position to anticipate the needs of
the force and how it will operate in the field. Any claim to equitable
adjustment as the result of a change in the orders, directions, or
instructions of the combatant commander will be handled in accordance
with the terms of the contract.
g. Paragraph (d)(5) of the clause, Applicability of the Uniform
Code of Military Justice (UCMJ).
Comment: Some respondents request more specific delineation of the
applicability of the UCMJ. One respondent comments that paragraph
(d)(5) should be deleted because the UCMJ will never, as a practical
matter, be applicable under the clause because contractor employees are
not subject to the UCMJ except during a declared war.
DoD Response: Concur. Paragraph (d)(5) has been deleted in its
entirety. To the extent that it is applicable, it is covered by
paragraph (d)(1) of the clause.
14. Contractor Personnel (252.225-70XX(e)) (252.225-7040(h))
a. Role of the combatant commander.
Comment: One respondent recommends that paragraph (1) should
reference paragraphs (p) and (q) because combatant commanders can also
take action to remove contractor personnel without the involvement of
the contracting officer.
DoD Response: Paragraph (p) has been substantially modified and
paragraph (q) of the clause has been deleted. (See paragraph 25 of this
section.)
b. Notification to contractor.
Comment: One respondent recommends rewording paragraph (e)(1) of
the clause to require notification and an opportunity to resolve the
matter with the contracting officer.
DoD Response: Nonconcur. Contracting officers must have the ability
to summarily direct the removal of personnel perceived as jeopardizing
or interfering with the mission. It is reasonable to assume that, prior
to directing removal, the contracting officer would have already made
efforts to resolve the matter with the contractor.
c. Reasonable opportunity to replace/equitable adjustment.
Comment: Several respondents recommend that contractors be given a
reasonable opportunity to replace any personnel removed from the force
and be given an equitable adjustment for any additional expenses that
may be compensable under the contract.
DoD Response: Nonconcur. Contractors, in accordance with
requirements of the contract, must have a plan for immediate
replacement of employees removed from the theater of operations.
Contractors must replace and, where applicable, repatriate any
contractor personnel at its own expense.
Further revision: DoD has revised paragraph (e)(1) of the clause
(redesignated as paragraph (h)(1) in the final rule) as follows: ``(1)
The Contracting Officer may direct the Contractor, at its own expense,
to remove and replace any contractor personnel who jeopardize or
interfere with mission accomplishment or who fail to comply with or
violate applicable requirements of this clause. Such action may be
taken at the Government's discretion without prejudice to its rights
under any other provision of this contract, including the Termination
for Default clause.'' This language was adopted from the Army interim
rule (48 CFR 5152.225-74-9000, Contractors Accompanying the Force, 68
FR 66740, November 28, 2003).
d. Provide the plan to the contracting officer.
Comment: One respondent recommends revising the last sentence of
paragraph (e)(2) of the clause to read: ``This plan shall be provided
to the Contracting Officer upon request and shall be made available for
review by the Contracting Officer's Representative.''
DoD Response: Partially concur. DoD concurs that the plan should be
made available to the contracting officer upon request. Since the FAR
defines ``contracting officer'' to include authorized representatives
of the contracting officer when acting within the limits of their
authority as delegated by the contracting officer, the phrase ``shall
be made available for review by the Contracting Officer's
Representative'' has been deleted from the clause.
e. Data item description for the plan.
Comment: One respondent recommends that the Government provide a
data item description for the desired unavailable employee replacement
plan and list the plan on the contract data requirements list.
DoD Response: Nonconcur. It is not necessary to establish a data
item description in order to request that the contractor have a plan
for replacing employees. This allows the contractor more flexibility in
determining the format and content of the plan.
f. Further revision. DoD has also added a requirement to keep the
plan current.
15. Personnel Data (252.225-70XX(f)) (252.225-7040(g))
a. ``Theater of operations'' not defined.
Comment: One respondent believes ``theater of operations'' (not the
term used in the proposed rule) is not a specifically defined term and
could create confusion as to which employees are in a given geographic
location supporting specific activities. The respondent recommends
revising paragraph (1) to require the contractor to maintain
information on all employees deployed into a theater of operation as
defined by the contracting officer for each covered contingency
operation.
DoD Response: Concur in part. A definition of ``theater of
operations'' has been added in paragraph (a) of the clause. In
accordance with the scope of this case, DoD has substituted the
following language: ``current list of all contractor personnel that
deploy with, or otherwise provide support in the theater of operations
to the U.S. military forces as specified in paragraph (b)(1) of this
clause.''
b. Cost of performance.
Comment: Several respondents express concern over the time and
expense for contractors to prepare and maintain the information.
DoD Response: Nonconcur. As the system is currently envisioned,
this requirement is incidental to contract performance and it is not
expected to place an unreasonable cost burden on the contractors. It
would appear to be a normal prudent business practice to be able to
identify which employees are working in high risk areas.
c. Specifically priced contract deliverable.
Comment: One respondent recommends making the contractual
obligation to maintain and/or provide the data a specifically priced
contract deliverable.
DoD Response: Nonconcur. Contractors should consider the work
involved and price their proposal accordingly. As the system is
currently envisioned, this requirement is incidental to contract
performance and it is not expected to place an unreasonable cost burden
on the contractors.
16. Pre-deployment Requirements (252.225-70XX(g)) (252.225-7040(e) and
(k))
a. Information from operation plans and operation orders may not be
available to contractor.
Comment: Several respondents suggest deleting the verbiage about
``contract annex to the operation order''
[[Page 23796]]
and including requirements from the operation order in the contract.
One respondent further recommends that the clause language require
compliance ``to the best of the contractor's knowledge.''
DoD Response: Concur in part. DoD has deleted ``contract annex to
the operation order'' from the clause. It is the responsibility of the
requiring activity to ensure that specific operational requirements are
deciphered, and the contracting officer must incorporate them into the
contract. DoD does not agree that the clause language should be changed
to require compliance ``to the best of the contractor's knowledge,'' as
language of this nature would be unenforceable. Specific requirements
of each element of this clause paragraph will be sufficiently spelled
out so contractors know exactly what is required.
b. Specific number of employees.
Comment: Several respondents believe that this clause should be
revised to refer to a specific number of employees a contractor can
provide to meet desired qualifications, to permit advance negotiations
between contractors and customers to avoid lag times once operations
begin.
DoD Response: Nonconcur. This clause puts contractors on notice
that they may need to deploy and, therefore, they need to ensure they
have qualified or qualifiable personnel to meet contract requirements.
c. Security and background checks (para. (1)).
Comment: One respondent notes that the Government must specify
security requirements on the DD Form 254, Access to National Security
Information, if the contractor and its employees may be required to
have access to certain national security information. Another
respondent recommends deleting ``All applicable specified'' and
replacing it with ``Applicable.'' A respondent also recommends adding
``and acceptable'' at the end of the paragraph to ensure security and
background checks were accomplished and are acceptable.
DoD Response: Concur in part. A DD Form 254 is used when a
contractor will require access to or will generate classified
information, so it may or may not be applicable in a contract.
Background checks may also be required and, if so, should be specified
in the contract. DoD has changed ``All applicable specified'' to ``All
required'' and ``and acceptable'' has been added at the end.
d. Medical requirements (para. (2)).
Comment: Several comments were received regarding the fact that no
specific minimum medical standards were included in the clause; thus,
contractors do not know what constitutes ``medically and physically
fit.'' Specific readiness requirements and required vaccinations must
be set forth in the contract. An appeal procedure should be included to
preclude forcing contractors to submit to potentially hazardous,
experimental, or untested vaccinations. DoD should provide any vaccines
that are only available to federal providers. This requirement has the
potential to significantly increase cost of performance to establish
and maintain a system concerning health and level of physical readiness
for contractor employees. Another respondent is concerned that
contractors are dependent upon the Government to provide certain
vaccines because only the Government has access to those vaccines.
DoD Response: Concur in part. The clause has been revised to state
that contractor personnel must meet the minimum medical screening
requirements as set forth in the contract. The Government will provide
contractors with theater-specific medical supplies or medications.
The term ``vaccinations'' has been changed to ``immunizations'' to
be consistent with terminology in DoD policy. The Combatant Command
Surgeon establishes immunization requirements for the area of
operations and maintains a listing of them. The immunization listing
will also need to be incorporated in contracts. DoD does not agree with
establishment of appeal procedures for immunizations for contractors.
If contractor personnel are not willing to receive the required
immunizations, the contractor will be required to provide other
personnel who are willing to meet the contractual requirements.
e. Vehicle or equipment licenses (para. (3)).
Comment: One respondent recommends adding ``United States'' before
``licenses'' to clarify that there is no obligation for contractors to
search out or comply with any foreign requirements to operate vehicles
or equipment.
DoD Response: Nonconcur. Although contractor personnel may not be
able to obtain foreign licenses prior to deployment, contractors may be
required to obtain foreign licenses at the deployed location. Paragraph
(3) has been relocated from pre-deployment requirements to a separate
paragraph (k).
Comment: Another respondent states that the clause should address
ownership of vehicles and equipment necessary to perform the contract
in the theater of operations and requests that the contractor and its
employees not be held liable for damages, of any kind, resulting from
the operation of Government owned or leased equipment, and shall be
indemnified and held harmless against all losses, costs, claims, causes
of action, damages, liabilities, and expenses arising directly or
indirectly from any act or omission relating to the operation of such
equipment by contractor or contractor's employees, agents,
subcontractors, or suppliers.
DoD Response: Nonconcur. Generally, contractors are required to
provide their own vehicles and equipment to meet the terms of their
contract. Vehicle requirements should be specified elsewhere in the
contract and any contract that provides government furnished equipment
(GFE) will include a GFE clause in the contract to cover liability for
damages. This paragraph only covers required licenses to operate
vehicles and equipment.
f. Visas.
Comment: One respondent does not believe it is in the best interest
of the United States to impose a requirement that a contractor obtain a
foreign Government's approval through entrance or exit visas before
implementing a U.S. Government contract.
DoD Response: Nonconcur. Contractors must coordinate through the
State Department and ensure their personnel meet all requirements for
entering and exiting the deployed location. The mere fact that a
contractor has a contract with the U.S. Government does not absolve the
contractor from meeting foreign entry and exit requirements.
g. Geneva Conventions identification card.
Comment: One respondent recommends issuing Geneva Conventions
identification cards to contractor employees.
DoD Response: Concur. The clause has been revised to clarify that
deploying contractor personnel should receive a Geneva Conventions
identification card from the deployment center.
h. Country and theater clearance (para. (5)).
Comment: Several respondents comment that the clause should specify
what country and theater clearances are required and where to obtain
them.
DoD Response: Concur. The clause has been revised to cite DoD
Directive 4500.54, Official Temporary Duty Abroad, and DoD 4500.54-G,
DoD Foreign Clearance Guide.
[[Page 23797]]
17. Military clothing and equipment (252.225-70XX(h)) (52.225-7040(i))
a. Authorization to wear military clothing (para (1)).
Comment: One respondent commented that ``specifically authorized by
the Combatant Commander'' should be changed to ``required by the
Combatant Commander.'' They recommended changing ``military clothing''
to ``military uniforms'' and they believe wearing of military uniforms
by contractor personnel should require consent of the contractor.
DoD Response: Nonconcur. The combatant commander does not require
the wearing of military clothing but may authorize, in writing, certain
contractor personnel to wear standard military clothing for operational
reasons on a case-by-case basis. ``Uniforms'' implies military uniforms
with appropriate rank, decorations, etc., which are only authorized for
uniformed military personnel. Clothing denotes uniform items worn
without specific military insignia.
b. Need for distinctive insignia.
Comment: If contractor personnel are authorized by the combatant
commander to wear military clothing (and are not carrying firearms),
they should be required to wear distinctive civilian insignia to keep
non-combatant civilian status clear under the Geneva Conventions.
DoD Response: Concur. DoD has added to the clause language
pertaining to distinctive insignia.
c. Organizational clothing and equipment.
Comment: Change ``specific items'' to ``military-unique
organizational clothing and individual equipment (OCIE).'' The
Government should inform the contractor of necessary clothing and
protective equipment and provide OCIE to the contractor when such
equipment is only available from the Government.
DoD Response: Concur. Use of term OCIE instead of ``specific
items'' adds clarification and consistency. The clause, as written,
already provides for Government issuance of military-unique OCIE.
Necessary clothing and protective equipment should be spelled out
elsewhere in the contract.
d. Return of OCIE.
Comment: Several respondents recommend changing the clause to allow
the return of OCIE to places other than the original point of issue, as
directed by the contracting officer or contracting officer's
representative (COR). Another respondent states that contracting
officers are geographically separated from the place of performance and
do not have visibility over equipment issued to contractor employees in
the theater. This respondent recommends adding language to make
contractors directly responsible to the issuing organization for
equipment that needs to be returned.
DoD Response: Concur in part. Concur with changing the language to
allow the return of OCIE to places other than the original point of
issue, as directed by the contracting officer, to provide for
flexibility at the deployed location. Concur in theory with the
recommendation to have contractors directly responsible to the issuing
organization. However, the COR is usually in the theater of operations
and would have visibility over equipment that is issued in the theater
of operations. The COR can direct the contractor to return the
equipment to the desired location if given the authority to do so. The
language ``In accordance with Government-Furnished Property clauses
specified elsewhere in this contract'' is redundant and unnecessary so
it has been deleted.
18. Weapons (252.225-70XX(i)) (252.225-7040(j))
a. Contractor personnel must be able to protect themselves.
Comment: Many respondents feel strongly that contractor personnel
must be able to protect themselves in dangerous situations and seem to
think that the proposed rule bans contractors from carrying weapons.
There are fears that commanders could easily depend upon contractor
labor, transportation of heavy equipment, or civil engineering
services, but will not be manned to a level necessary to protect them.
DoD Response: Partially nonconcur. The clause does not require
contractors to be unarmed in all cases. The clause states that the
combatant commander will make a determination whether contractors can
be armed, and the type of arms allowed, in any particular situation.
The clause allows the combatant commander, who is responsible for
military control in the region, to determine on a case-by-case basis
whether arms are necessary.
b. Privately owned weapons.
Comment: Several respondents object that allowing contractors to
carry privately owned weapons is a major policy shift and should not be
allowed. Authorizing private firearms carries a great risk of a
political/military occurrence that can negatively impact the overall
mission and national security and is not outweighed by the benefit of
private firearms, since there is authority for military issuance
already. Several respondents believe that employee- or other privately-
owned firearms should be prohibited in all cases, but wants a
distinction made between ``Government-furnished firearms'' and
``contractor-provided'' firearms.
DoD Response: Concur in part. The language specifically allowing
the combatant commander to authorize the carrying of privately-owned
weapons has been deleted from the clause. However, as the DoD policy is
not yet established, the clause leaves the decision to the combatant
commander, to be made in conformity with treaties, laws, regulations,
and policies that are in effect at the time of the decision.
c. Status as noncombatant civilians.
Comment: Several respondents are concerned that contractor
personnel should not be armed except in extremely limited circumstances
when necessary for self-defense. The Government actions of arming the
contractor under certain circumstances places the contractor at risk of
forfeiting their status as noncombatant civilians, subjecting a
contractor captured by the enemy to be deemed an unlawful combatant or
a mercenary, thereby losing POW status and treatment. If contractor
employees are armed, the respondent recommends that the Government
provide training to contractor personnel regarding when the weapons can
be used, not just how to use them.
DoD Response: Concur in part. DoD understands the potential risk in
allowing contractors to carry and use weapons in a hostile environment,
which may arise in some of the situations covered by this clause.
However, since the clause will be used for a variety of situations and
circumstances, the most practical approach is to give the combatant
commander the final decision as to whether to allow contractors to
carry and use weapons and the types of weapons that will be authorized.
The clause has been amended to caution that contractor personnel are
not combatants and shall not undertake any role that would jeopardize
that status. The clause already requires the Contractor to ensure that
its personnel who are authorized to carry weapons are adequately
trained. That should include training not only on how to use a weapon,
but when to use a weapon.
d. Contractor and contractor employees must agree to accept
weapons.
Comment: Several respondents want the rule to clarify that
acceptance of weapons by contractor employees is strictly voluntary and
must be explicitly authorized by the contractor.
[[Page 23798]]
DoD Response: Concur in part. The clause has been amended to
explicitly state that the contractor must request authorization for its
employees to carry weapons before the combatant commander authorizes
such activity. It is the contractor's responsibility to determine
whether to request authorization and for which employees to request
such authorization. The employer-employee relationship is the
responsibility of the contractor and its employees and should be dealt
with in the employment agreement, not through the contract clause, as
the Government has no privity of contract directly with the employees.
e. Contractor liability.
Comment: Several respondents are concerned about unmitigated
liability for contractors in the event of injury or loss of life
resulting from intentional use or accidental discharge of such weapons.
The Government should indemnify and hold harmless the contractor
against all losses, costs, claims, and causes of action relating to the
use of Government-furnished weapons by contractor and/or contractor's
employees. Unless the Government has and exercises authority to
indemnify contractors and their employees against all claims for damage
or injury and to ensure immunity from criminal prosecution associated
with the use of weapons during deployment operations, the proposed
clause should be modified to prohibit the issuance of weapons to
contractor personnel.
DoD Response: Nonconcur. The clause in no way obligates contractors
to allow their employees to carry weapons. Contractor personnel will
only carry weapons if the contractor requests that its employees be
allowed to carry weapons and the combatant commander authorizes the
carrying of weapons. DoD cannot indemnify contractors and their
personnel against all claims for damage or injury or ensure immunity
from criminal prosecution associated with the use of weapons. Decisions
to indemnify are made in accordance with FAR 50.403-1.
f. Specified contractor employees.
Comment: The word ``specified'' is not clear and could be
interpreted to mean the Government specifies which contractor personnel
would be issued the firearm, which the Government is not allowed to do.
DoD Response: Concur in part. The clause has been amended to
clearly state that it is the contractor's responsibility to request
that its personnel in the theater of operations be authorized to carry
weapons. Therefore, it would be up to the contractor to determine which
specific employees will be authorized to carry weapons and the criteria
for that authorization.
g. Redeployment or revocation.
Comment: Upon termination of the commander's authority, the
contractor is required to return any Government-issued firearms
according to the direction given by the contracting officer. One
respondent requests that, if the employee is permitted to carry
contractor-issued firearms, the employee must cease carrying those
firearms and must follow contractor-provided direction for their
disposition.
DoD Response: Nonconcur in part. It is the contractor's
responsibility to direct the disposition of contractor-provided
weapons.
h. DD Form 2760.
Comment: One respondent recommends required use of DD Form 2760
when weapons are issued, to ensure compliance with the Lautenberg
amendment regarding domestic violence convictions.
DoD Response: Partially concur. The clause requires the contractor
to ensure that its personnel who are authorized to carry weapons are
not barred from possession of a firearm by 18 U.S.C. 922. The draft DoD
Instruction on Procedures for the Management of Contingency Contractor
Personnel During Contingency Operations proposes additional
requirements for contracted security services, including submission of
a DD Form 2760 (Qualification to Possess Firearms and Ammunition) for
each individual employee that will be providing the security services.
19. Next of Kin (252.225-70XX(j)) (252.225-7040(n))
a. ``In-person notification.''
Comment: Several respondents have concerns about the requirement
for in-person notification.
DoD Response: Concur. It is the responsibility of the contractor to
determine how to notify its employee's next of kin.
b. Notify the contracting officer.
Comment: One respondent also suggests adding a requirement that the
contractor inform the contracting officer if the contractor is informed
through other than Government channels of the death, injury, or capture
of one of its employees, or if the employee appears to be missing, so
the Government can take action to verify and provide support as
appropriate.
DoD Response: Concur in part. The contractor is already required to
notify the contracting officer, because the contractor has a
responsibility to keep current personnel data in accordance with
paragraph (g) of the clause.
c. Point of contact for continuing support.
Comment: Personnel Recovery Policy OSD/Defense requires that, in
the case of a missing or captured contractor, the Government will
assign an official point of contact to the next of kin for continuing
support, and provision of information, as appropriate and proper.
DoD Response: Concur. In the case of missing, captured, or abducted
contractor personnel, the Government will assist in personnel recovery
actions in accordance with DoD Directive 2310.2, Personnel Recovery.
20. Evacuation of Bodies (252.225-XX(k)) (252.225-7040(o)) DoDD 1300.22
Comment: Several respondents believe that the clause places an
undue burden on the contractor and does not adequately address
Government responsibilities or procedures; question the meaning of
``point of identification''; and request that the clause be in
accordance with DoDD 1300.22, Mortuary Affairs Policy.
DoD Response: Concur. DoD has modified the clause to state that
mortuary affairs will be handled in accordance with DoD Directive
1300.22.
21. Evacuation (252.225-70XX (l)) (252.225-7040(m))
a. Mandatory evacuation.
Comment: Some respondents want to add, after ``Combatant
Commander,'' the phrase ``or other competent authority'' or ``or other
authority over the U.S. Forces.''
DoD Response: Nonconcur. The combatant commander has the authority
to delegate within the military chain of command. If the ambassador
orders an evacuation, that is the intervention of a sovereign authority
and the obligation to comply is not created by the contract. Procedures
for evacuation are provided for in other regulations and are outside
the scope of this rule.
Comment: Another respondent states that if the Government decides
to evacuate contractor personnel, the Government should furnish
transportation to do so.
DoD Response: Concur in part. The clause provides that the
Government will provide assistance to the extent feasible to United
States and third country national contractor personnel. Government
guaranteed evacuation may or may not be possible in a fluid situation.
Setting forth a promise that the Government may not be able to meet
would be misleading to potential employees.
b. Nonmandatory evacuation--continued contract performance.
[[Page 23799]]
Comment: One respondent wants evacuation of contractor personnel
and their dependents whenever conditions cause the United States to
issue travel warnings or permit voluntary evacuation of non-essential
U.S. Government personnel and dependants.
DoD Response: Nonconcur. The situations covered by this clause are
not the type of situations in which DoD envisions that contractor
personnel would have dependents with them. The Contractor has been
warned in paragraph (b) about the risks of supporting the force in such
operations, and contractor personnel who are unwilling to accept these
risks should not be in these positions.
Comment: Another respondent requests modification of paragraph (l)
to allow for evacuation of contractor employees due to the inherent
dangers associated with job performance during deployment. This change
is necessary to meet legal requirements that an employer provide a safe
workplace for employees. Any clause governing deployment of contractor
personnel should contain language excusing contractor performance in
the event of refusal of contractor personnel to accompany the force or
to perform work upon deployment.
DoD Response: Nonconcur. Since these are contracts to support the
war fighter, by their nature these contracts are likely to involve some
risk. It is the contractor's responsibility to ensure that it has
willing personnel to fulfill the contract terms.
Comment: Several respondents recommend inserting ``essential''
between ``meet'' and ``contractual'' in the final sentence.
DoD Response: Nonconcur. A nonmandatory evacuation will not
necessarily constitute a crisis situation as defined in DoDI 3020.37.
DoD has added PGI guidance regarding identification in the contract of
mission essential services that would require continued performance
during crisis situations outside the United States. If the contract
specifies which mission essential services must be continued during a
crisis situation, and the non-mandatory evacuation order is during a
crisis situation, then meeting the contractual obligations will only
entail the continued performance of mission essential services. If the
contract does not specify which services are mission essential, or the
situation is not a crisis, the contracting officer can still designate
that certain contractor personnel may leave.
22. Insurance (252.225-70XX(m)) (deleted from 252.225-7040)
a. Contractor responsibility for employee's personal insurance
policies.
Comment: Several respondents object to this paragraph in the
proposed rule, finding that it is confusing. One respondent finds an
erroneous inference that contractors will or do provide employees with
personal insurance policies over and above company-sponsored coverage,
or that the contractor is responsible for any gaps that may exist in
personal coverage. Several respondents believe that paragraph (m),
placing responsibility on the contractor for all issues dealing with
the exclusions contained in an employee's personal insurance policies,
conflicts with the statutory requirements and protections of the
Defense Base Act, 42 U.S.C. 1651 et seq., and the War Hazards
Compensation Act, 42 U.S.C. 1701 et seq.
DoD Response: Concur in part. DoD agrees that the language is
somewhat confusing and open to misinterpretation, and has therefore
removed this paragraph in the final rule.
b. Defense Base Act, War Hazards Compensation Act, and other
workers' compensation programs.
Comment: Some respondents recommend that the clause make reference
to existing FAR and DFARS clauses regarding the Defense Base Act
clauses and various workers' compensation programs. In doing so,
contractors may avoid purchasing unnecessary coverage, the cost of
which is passed to the Government. One respondent recommends that each
of the clauses implementing the Defense Base Act and the War Hazards
Compensation Act be identified for mandatory inclusion in contracts
covered by this clause.
DoD Response: Concur in part. DoD has included guidance in PGI
regarding additional clauses to consider when using the clause at DFARS
252.225-7040. The PGI guidance recommends consideration of either the
clause at FAR 52.228-3, Worker's Compensation Insurance (Defense Base
Act), or the clause at FAR 52.228-4, Worker's Compensation and War
Hazard Insurance, in accordance with the clause prescriptions at FAR
28.309(a) and (b); use of the clause at FAR 52.228-7, Insurance-
Liability to Third Persons, in cost-reimbursement contracts as
prescribed at DFARS 228.311-1; and use of the clauses at FAR 52.251-1,
Government Supply Sources, as prescribed at FAR 51.107, and DFARS
252.251-7000, Ordering from Government Supply Sources, as prescribed at
DFARS 251.107.
Additionally, all other appropriate FAR and DFARS clauses will be
included in the contract consistent with the prescriptions as to
situations where they are applicable. This clause does not need to
repeat the prescriptions for use of clauses that are already in the FAR
and DFARS.
c. Government should facilitate larger risk pool.
Comment: One respondent believes that additional insurance coverage
for war hazards, normally excluded from group life insurance policies,
should be an allowable cost and recommends that the Government
establish a mechanism for facilitating that coverage on an industry-
wide basis in order to allow contractors to po