Defense Federal Acquisition Regulation Supplement; Contractor Personnel Authorized to Accompany U.S. Armed Forces (DFARS Case 2005-D013), 34826-34831 [E6-9499]
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Authority: 90 Stat. 2958, 16 U.S.C. 472a; 98
Stat. 2213, 16 U.S.C. 618, 104 Stat. 714–726,
16 U.S.C. 620–620j, unless otherwise noted.
2. Amend § 223.85 by revising
paragraph (b) and adding paragraph (c)
to read as follows:
I
§ 223.85
Noncompetitive sale of timber.
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(b) Extraordinary conditions, as
provided for in 16 U.S.C. 472a(d), are
defined to include the potential harm to
natural resources, including fish and
wildlife, and related circumstances
arising as a result of the award or release
of timber sale contracts pursuant to
section 2001(k) of Public Law 104–19
(109 Stat. 246). Notwithstanding the
provisions of paragraph (a) of this
section or any other regulation in this
part, for timber sale contracts that have
been or will be awarded or released
pursuant to section 2001(k) of Public
Law 104–19 (109 Stat. 246), the
Secretary of Agriculture may allow
forest officers to, without advertisement,
modify those timber sale contracts by
substituting timber from outside the sale
area specified in the contract for timber
within the timber sale contract area.
(c) Extraordinary conditions, as
provided for in 16 U.S.C. 472a(d),
includes those conditions under which
contracts for the sale or exchange of
timber or other forest products must be
suspended, modified, or terminated
under the terms of such contracts to
prevent environmental degradation or
resource damage, or as the result of
administrative appeals, litigation, court
orders, or catastrophic events.
Notwithstanding the provisions of
paragraph (a) of this section or any other
regulation in this part, when such
extraordinary conditions exist on sales
not addressed in paragraph (b) of this
section, the Secretary of Agriculture
may allow forest officers to, without
advertisement, modify those contracts
by substituting timber or other forest
products from outside the contract area
specified in the contract for timber or
forest products within the area specified
in the contract. When such
extraordinary conditions exist, the
Forest Service and the purchaser shall
make good faith efforts to identify
replacement timber or forest products of
similar volume, quality, value, access,
and topography. When replacement
timber or forest products agreeable to
both parties is identified, the contract
will be modified to reflect the changes
associated with the substitution,
including a rate redetermination.
Concurrently, both parties will sign an
agreement waiving any future claims for
damages associated with the deleted
timber or forest products, except those
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specifically provided for under the
contract up to the time of the
modification. If the Forest Service and
the purchaser cannot reach agreement
on satisfactory replacement timber or
forest products, or the proper value of
such material, either party may opt to
end the search. Replacement timber or
forest products must come from the
same national forest as the original
contract, and must meet agency
requirements for compliance with
applicable laws and regulations.
Replacement timber or forest products
must also come from an area included
in an approved National Environmental
Policy Act decision in which the
appeals process has been exhausted.
The value of replacement timber or
forest products may not exceed the
value of the material it is replacing by
more than 10% or $10,000, whichever is
less as determined by standard Forest
Service appraisal methods.
Dated: June 7, 2006.
David P. Tenny,
Deputy Under Secretary, Natural Resources
and Environment.
[FR Doc. E6–9424 Filed 6–15–06; 8:45 am]
BILLING CODE 3410–11–P
A. Background
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 212, 225, and 252
RIN 0750–AF25
Defense Federal Acquisition
Regulation Supplement; Contractor
Personnel Authorized to Accompany
U.S. Armed Forces (DFARS Case
2005–D013)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Interim rule with request for
comments.
AGENCY:
SUMMARY: DoD has issued an interim
rule amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to implement DoD policy
regarding contractor personnel
authorized to accompany U.S. Armed
Forces deployed outside the United
States. The rule addresses the status of
contractor personnel as civilians
accompanying the U.S. Armed Forces
and the responsibilities of the
combatant commander regarding the
protection of contractor personnel.
DATES: Effective date: June 16, 2006.
Comment date: Comments on the
interim rule should be submitted to the
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address shown below on or before
August 15, 2006, to be considered in the
formation of the final rule.
ADDRESSES: You may submit comments,
identified by DFARS Case 2005–D013,
using any of the following methods:
Æ Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
Æ E-mail: dfars@osd.mil. Include
DFARS Case 2005–D013 in the subject
line of the message.
Æ Fax: (703) 602–0350.
Æ Mail: Defense Acquisition
Regulations System, Attn: Ms. Amy
Williams, OUSD(AT&L) DPAP (DARS),
IMD 3C132, 3062 Defense Pentagon,
Washington, DC 20301–3062.
Æ Hand Delivery/Courier: Defense
Acquisition Regulations System, Crystal
Square 4, Suite 200A, 241 18th Street,
Arlington, VA 22202–3402.
Comments received generally will be
posted without change to https://
www.regulations.gov, including any
personal information provided.
FOR FURTHER INFORMATION CONTACT: Ms.
Amy Williams, (703) 602–0328.
SUPPLEMENTARY INFORMATION:
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This interim rule revises DFARS
Subpart 225.74 and the clause at DFARS
252.225–7040 to implement the policy
in DoD Instruction 3020.41, Contractor
Personnel Authorized to Accompany
the U.S. Armed Forces, dated October 3,
2005. DoD Instruction 3020.41 is
available via the Internet at https://
www.dtic.mil/whs/directives/corres/
html/302041.htm.
The DFARS changes address the
following areas:
1. Contractor participation in hostilities
Prior to this interim rule, paragraph
(b) of the clause at DFARS 252.225–
7040 prohibited contractor personnel
from using force or otherwise directly
participating in acts likely to cause
actual harm to enemy armed forces. The
interim rule revises the clause to
provide for contractor personnel other
than private security contractor
personnel to use deadly force against
enemy armed forces only in selfdefense. Private security contractor
personnel are also authorized to use
deadly force when necessary to execute
their security mission to protect assets/
persons, consistent with the mission
statement contained in their contract. It
is the responsibility of the combatant
commander to ensure that private
security contract mission statements do
not authorize the performance of any
inherently Governmental military
functions, such as preemptive attacks,
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or any other types of attacks. Otherwise,
civilians who accompany the U.S.
Armed Forces lose their law of war
protection from direct attack if and for
such time as they take a direct part in
hostilities.
5. Not active duty
2. Government support
6. Letter of Authorization and Common
Access Card
Prior to this interim rule, paragraph
(c) of the clause at 252.225–7040
required the combatant commander to
develop a security plan for protection of
contractor personnel through military
means unless the terms of the contract
placed the responsibility with another
party. In accordance with DoD
Instruction 3020.41, paragraph 6.3.4.,
this interim rule revises the clause to
limit the requirement for the combatant
commander to develop such a security
plan to those locations where there is
not sufficient or legitimate civil
authority and the combatant
commander decides that it is in the
interests of the Government to provide
security.
Paragraph (c)(3) of the clause at
252.225–7040 requires the contractor to
provide support for its personnel,
except as otherwise specified in the
contract. This interim rule adds text at
225.7402–3(b) to state that the
Government will provide logistical or
security support only when the
appropriate agency official, in
accordance with agency guidance,
determines that Government provision
of such support is needed to ensure
continuation of essential contractor
services and that the contractor cannot
obtain adequate support from other
sources. This interim rule also adds text
at 225.7402–3(c)(4) to require that the
contract specify whether the support is
to be provided on a reimbursable basis,
citing the authority for the
reimbursement.
3. Authorized to accompany the U.S.
Armed Forces
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The scope of the DFARS policy is
changed, from ‘‘other military
operations or exercises designated by
the combatant commander,’’ to ‘‘other
military operations’’ and ‘‘military
exercises designated by the combatant
commander.’’ A definition of ‘‘other
military operations’’ is added to
paragraph (a) of the clause at 252.225–
7040.
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7. Training
Paragraphs (e)(1)(v) and (vi) are added
to the clause at 252.225–7040 to address
additional pre-deployment training
requirements relating to personal
security and isolated personnel.
8. Military Extraterritorial Jurisdiction
Act and other applicable statutes
Paragraph (e)(2) is added to the clause
at 252.225–7040 to address the
requirement for the contractor to notify
its personnel that—
Æ The Military Extraterritorial
Jurisdiction Act (18 U.S.C. 3621, et seq.)
and some other statutes may apply to
contractor personnel who commit
offenses outside the United States; and
Æ When there is a formal declaration
of war by Congress, contractor
personnel authorized to accompany U.S.
Armed Forces may be subject to
prosecution under the Uniform Code of
Military Justice.
9. Deployment centers
10. Personnel data list
4. Other military operations
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Paragraph (c)(4) is added to the clause
at 252.225–7040 to address
requirements for contractor personnel to
have a letter of authorization, for
consistency with the policy at
225.7402–3(d). Also, text has been
added to paragraph (e)(1)(iii) of the
clause to address requirements for
Common Access Cards issued to
deploying personnel to contain the
access permissions allowed by the letter
of authorization.
Paragraph (f)(1) of the clause at
252.225–7040 is amended to clarify that
the deployment center must ensure that
all deployment requirements are met.
The phrase ‘‘supporting a force’’ is
replaced with ‘‘authorized to
accompany U.S. Armed Forces’’
throughout the rule.
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Paragraph (b)(4) is added to the clause
at 252.225–7040 to clarify that service
performed by contractor personnel
subject to the clause is not active duty
or service under 38 U.S.C. 106.
Paragraph (g)(1) of the clause at
252.225–7040 is revised to clarify
requirements for the contractor to
establish and maintain a personnel data
list.
11. Military clothing and protective
equipment
Paragraph (i) of the clause at 252.225–
7040 is amended to clarify requirements
relating to military clothing and
protective equipment.
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12. Weapons
Paragraph (j) of the clause at 252.225–
7040 is revised to clarify requirements
relating to situations where contractor
personnel are authorized to carry
weapons. A statement has also been
added to clarify that the liability for use
of any weapon by contractor personnel
rests solely with the contractor and the
contractor employee using such
weapon.
13. Personnel recovery
Paragraph (n) of the clause at
252.225–7040 is amended to include
additional terms (‘‘isolated’’ and
‘‘detained’’) to cover all situations in
which an employee might need to be
recovered.
14. Changes
Paragraph (p) of the clause at
252.225–7040 is amended to include
‘‘place of performance’’ as a condition
that is subject to change, in addition to
those authorized by the Changes clause.
Although paragraph (c) of the clause
already addresses site changes, the term
‘‘place of performance’’ has a broader
applicability, since the term ‘‘site’’ is
normally associated with construction
contracts.
This rule was subject to Office of
Management and Budget review under
Executive Order 12866, dated
September 30, 1993.
B. Regulatory Flexibility Act
This rule is not expected to have a
significant economic impact on a
substantial number of small entities
within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq.,
because application of the rule is
limited to those contracts that involve
contractor personnel authorized to
accompany U.S. Armed Forces
deployed outside the United States.
Therefore, DoD has not performed an
initial regulatory flexibility analysis.
DoD invites comments from small
businesses and other interested parties.
DoD also will consider comments from
small entities concerning the affected
DFARS subparts in accordance with 5
U.S.C. 610. Such comments should be
submitted separately and should cite
DFARS Case 2005–D013.
C. Paperwork Reduction Act
The Paperwork Reduction Act does
not apply, because the rule does not
impose any information collection
requirements that require the approval
of the Office of Management and Budget
under 44 U.S.C. 3501, et seq. Although
the contract clause requires contractors
to maintain certain information
regarding their personnel, DoD believes
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that this requirement is usual and
customary and does not exceed what a
contractor would maintain in the
normal course of business.
225.7402 Contractor personnel authorized
to accompany U.S. Armed Forces deployed
outside the United States.
D. Determination to Issue an Interim
Rule
A determination has been made under
the authority of the Secretary of Defense
that urgent and compelling reasons exist
to publish an interim rule prior to
affording the public an opportunity to
comment. This interim rule implements
DoD Instruction 3020.41, Contractor
Personnel Authorized to Accompany
the U.S. Armed Forces, dated October 3,
2005. Existing DFARS requirements
prohibit contractor personnel from
using force or otherwise directly
participating in acts likely to cause
actual harm to enemy armed forces. In
accordance with DoD Instruction
3020.41, this interim rule revises the
DFARS to provide for contractor
personnel to use deadly force against
enemy armed forces in self-defense or in
the performance of a contract for private
security services. Comments received in
response to this interim rule will be
considered in the formation of the final
rule.
This section applies to contracts that
involve contractor personnel authorized
to accompany U.S. Armed Forces
deployed outside the United States in—
(a) Contingency operations;
(b) Humanitarian or peacekeeping
operations;
(c) Other military operations; or
(d) Military exercises designated by
the combatant commander.
List of Subjects in 48 CFR Parts 212,
225, and 252
Government procurement.
Michele P. Peterson,
Editor, Defense Acquisition Regulations
System.
Therefore, 48 CFR Parts 212, 225, and
252 are amended as follows:
I 1. The authority citation for 48 CFR
Parts 212, 225, and 252 continues to
read as follows:
I
Authority: 41 U.S.C. 421 and 48 CFR
Chapter 1.
PART 212—ACQUISITION OF
COMMERCIAL ITEMS
2. Section 212.301 is amended by
revising paragraph (f)(vii) to read as
follows:
I
212.301 Solicitation provisions and
contract clauses for the acquisition of
commercial items.
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(f) * * *
(vii) Use the clause at 252.225–7040,
Contractor Personnel Authorized to
Accompany U.S. Armed Forces
Deployed Outside the United States, as
prescribed in 225.7402–4.
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PART 225—FOREIGN ACQUISITION
3. Sections 225.7402 through
225.7402–4 are revised to read as
follows:
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225.7402–1
225.7402–2
Scope.
Definitions.
Combatant commander, other
military operations, and theater of
operations, as used in this section, have
the meaning given in the clause at
252.225–7040, Contractor Personnel
Authorized to Accompany U.S. Armed
Forces 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 agency shall provide logistical
or security support only when the
appropriate agency official, in
accordance with agency guidance,
determines in coordination with the
combatant commander that—
(1) Government provision of such
support is needed to ensure
continuation of essential contractor
services; and
(2) The contractor cannot obtain
adequate support from other sources.
(c) 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 Authorized to Accompany
U.S. Armed Forces 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
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(4) Specify in the contract any other
Government support to be provided,
and whether this support is provided on
a reimbursable basis, citing the
authority for the reimbursement.
(d) 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
under the contract. For a sample LOA,
see PGI 225.7402–3(d).
225.7402–4
Contract clauses.
(a) Use the clause at 252.225–7040,
Contractor Personnel Authorized to
Accompany U.S. Armed Forces
Deployed Outside the United States, in
solicitations and contracts when
contract performance requires that
contractor personnel accompany U.S.
Armed Forces deployed outside the
United States in—
(1) Contingency operations;
(2) Humanitarian or peacekeeping
operations;
(3) Other military operations; or
(4) Military 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).
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
4. Section 252.225–7040 is revised to
read as follows:
I
252.225–7040 Contractor Personnel
Authorized to Accompany U.S. Armed
Forces Deployed Outside the United States.
As prescribed in 225.7402–4(a), use
the following clause: Contractor
Personnel Authorized To Accompany
U.S. Armed Forces Deployed Outside
The United States (JUN 2006)
(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.
Other military operations means a
range of military force responses that
can be projected to accomplish assigned
tasks. Such operations may include one
or a combination of the following: Civic
action, humanitarian assistance, civil
affairs, and other military activities to
develop positive relationships with
other countries; confidence building
and other measures to reduce military
tensions; military presence; activities to
convey messages to adversaries; military
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deceptions and psychological
operations; quarantines, blockades, and
harassment operations; raids;
intervention operations; armed conflict
involving air, land, maritime, and
strategic warfare operations; support for
law enforcement authorities to counter
international criminal activities
(terrorism, narcotics trafficking, slavery,
and piracy); support for law
enforcement authorities to suppress
domestic rebellion; and support for
insurgency, counterinsurgency, and
civil war in foreign countries.
Theater of operations means an area
defined by the combatant commander
for the conduct or support of specified
operations.
(b) General.
(1) This clause applies when
Contractor personnel are authorized to
accompany U.S. Armed Forces
deployed outside the United States in—
(i) Contingency operations;
(ii) Humanitarian or peacekeeping
operations;
(iii) Other military operations; or
(iv) Military exercises designated by
the Combatant Commander.
(2) Contract performance in support of
U.S. Armed Forces deployed outside the
United States may require work in
dangerous or austere conditions. The
Contractor accepts the risks associated
with required contract performance in
such operations.
(3) Contractor personnel are civilians
accompanying the U.S. Armed Forces.
(i) Except as provided in paragraph
(b)(3)(ii) of this clause, Contractor
personnel are not authorized to use
deadly force against enemy armed forces
other than in self-defense.
(ii) Private security Contractor
personnel are authorized to use deadly
force only when necessary to execute
their security mission to protect assets/
persons, consistent with the mission
statement contained in their contract.
(iii) Civilians who accompany the
U.S. Armed Forces lose their law of war
protection from direct attack if and for
such time as they take a direct part in
hostilities.
(4) Service performed by Contractor
personnel subject to this clause is not
active duty or service under 38 U.S.C.
106 note.
(c) Support. (1)(i) The Combatant
Commander will develop a security
plan for protection of Contractor
personnel in locations where there is
not sufficient or legitimate civil
authority, when the Combatant
Commander decides it is in the interests
of the Government to provide security
because—
(A) The Contractor cannot obtain
effective security services;
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(B) Effective security services are
unavailable at a reasonable cost; or
(C) Threat conditions necessitate
security through military means.
(ii) The Contracting Officer shall
include in the contract the level of
protection to be provided to Contractor
personnel.
(iii) In appropriate cases, the
Combatant Commander may provide
security through military means,
commensurate with the level of security
provided DoD civilians.
(2)(i) Generally, all Contractor
personnel authorized to accompany the
U.S. Armed Forces in the theater of
operations may be provided
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.
(4) Contractor personnel must have a
letter of authorization issued by the
Contracting Officer in order to process
through a deployment center or to travel
to, from, or within the theater of
operations. The letter of authorization
also will identify any additional
authorizations, privileges, or
Government support that Contractor
personnel are entitled to under this
contract.
(d) Compliance with laws and
regulations. The Contractor shall
comply with, and shall ensure that its
personnel authorized to accompany U.S.
Armed Forces 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
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(4) Orders, directives, and
instructions issued by the Combatant
Commander, including those relating to
force protection, security, health, safety,
or relations and interaction with local
nationals.
(e) Pre-deployment requirements. (1)
The Contractor shall ensure that the
following requirements are met prior to
deploying personnel in support of U.S.
Armed Forces. Specific requirements for
each category may be specified in the
statement of work or elsewhere in the
contract.
(i) All required security and
background checks are complete and
acceptable.
(ii) 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.
(iii) 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, or
other appropriate DoD identity
credential, from the deployment center.
Any Common Access Card issued to
deploying personnel shall contain the
access permissions allowed by the letter
of authorization issued in accordance
with paragraph (c)(4) of this clause.
(iv) Special area, 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 non-DoD
personnel traveling under DoD
sponsorship.
(v) All personnel have received
personal security training. At a
minimum, the training shall—
(A) Cover safety and security issues
facing employees overseas;
(B) Identify safety and security
contingency planning activities; and
(C) Identify ways to utilize safety and
security personnel and other resources
appropriately.
(vi) All personnel have received
isolated personnel training, if specified
in the contract.
(2) The Contractor shall notify all
personnel who are not a host country
national, or who are not ordinarily
resident in the host country, that—
(i) Such employees, and dependents
residing with such employees, who
engage in conduct outside the United
States that would constitute an offense
punishable by imprisonment for more
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than one year if the conduct had been
engaged in within the special maritime
and territorial jurisdiction of the United
States, may potentially be subject to the
criminal jurisdiction of the United
States in accordance with the Military
Extraterritorial Jurisdiction Act of 2000
(18 U.S.C. 3621, et seq.);
(ii) Pursuant to the War Crimes Act
(18 U.S.C. 2441), Federal criminal
jurisdiction also extends to conduct that
is determined to constitute a violation of
the law of war when committed by a
civilian national of the United States;
(iii) Other laws may provide for
prosecution of U.S. nationals who
commit offenses on the premises of U.S.
diplomatic, consular, military or other
U.S. Government missions outside the
United States (18 U.S.C. 7(9)); and
(iv) When there is a formal
declaration of war by Congress,
Contractor personnel authorized to
accompany U.S. Armed Forces may be
subject to prosecution under the
Uniform Code of Military Justice.
(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,
including the requirements specified in
paragraph (e)(1) of this clause;
(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 theater-specific
policies and procedures.
(g) Personnel data list.
(1) In accordance with DoD
Instruction 3020.41, Contractor
Personnel Authorized to Accompany
the U.S. Armed Forces, 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. Armed Forces as specified in
paragraph (b)(1) of this clause. The list
shall include each individual’s general
location in the theater of operations.
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.
VerDate Aug<31>2005
16:11 Jun 15, 2006
Jkt 208001
(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 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 are
prohibited from wearing military
clothing unless specifically authorized
in writing by the Combatant
Commander. If authorized to wear
military clothing, Contractor personnel
must—
(i) Wear distinctive patches, arm
bands, nametags, or headgear, in order
to be distinguishable from military
personnel, consistent with force
protection measures; and
(ii) Carry the written authorization
with them at all times.
(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 equipment.
(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
PO 00000
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Fmt 4700
Sfmt 4700
the theater of operations be authorized
to carry weapons, the request shall be
made through the Contracting Officer to
the Combatant Commander, in
accordance with DoD Instruction
3020.41, paragraph 6.3.4.1 or, if the
contract is for security services,
paragraph 6.3.5.3. The Combatant
Commander will determine whether to
authorize in-theater Contractor
personnel to carry weapons and what
weapons and ammunition will be
allowed.
(2) If the Contracting Officer, subject
to the approval of the Combatant
Commander, authorizes the carrying of
weapons—
(i) The Contracting Officer may
authorize the Contractor to issue
Contractor-owned weapons and
ammunition to specified employees; or
(ii) The [Contracting Officer to specify
the appropriate individual, e.g.,
Contracting Officer’s Representative,
Regional Security Officer] may issue
Government-furnished weapons and
ammunition to the Contractor for
issuance to specified Contractor
employees.
(3) The Contractor shall ensure that its
personnel who are authorized to carry
weapons—
(i) Are adequately trained to carry and
use them—
(A) Safely;
(B) With full understanding of, and
adherence to, the rules of the use of
force issued by the Combatant
Commander; and
(C) In compliance with applicable
agency policies, agreements, rules,
regulations, and other applicable law;
(ii) Are not barred from possession of
a firearm by 18 U.S.C. 922; and
(iii) Adhere to all guidance and orders
issued by the Combatant Commander
regarding possession, use, safety, and
accountability of weapons and
ammunition.
(4) Whether or not weapons are
Government-furnished, all liability for
the use of any weapon by Contractor
personnel rests solely with the
Contractor and the Contractor employee
using such weapon.
(5) 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.
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Federal Register / Vol. 71, No. 116 / Friday, June 16, 2006 / Rules and Regulations
(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 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 employee-designated next of kin in
the event an employee dies, requires
evacuation due to an injury, or is
isolated, missing, detained, captured, or
abducted.
(2) In the case of isolated, missing,
detained, 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
accompanying the U.S. Armed 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 the place of
performance or Government-furnished
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 when subcontractor
personnel are authorized to accompany
U.S. Armed Forces deployed outside the
United States in—
(1) Contingency operations;
(2) Humanitarian or peacekeeping
operations;
(3) Other military operations; or
(4) Military exercises designated by
the Combatant Commander.
VerDate Aug<31>2005
16:11 Jun 15, 2006
Jkt 208001
(End of clause)
[FR Doc. E6–9499 Filed 6–15–06; 8:45 am]
BILLING CODE 5001–08–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
[DFARS Case 2004–D031]
48 CFR Part 219
Defense Federal Acquisition
Regulation Supplement; Sole Source
8(a) Awards to Small Business
Concerns Owned by Native Hawaiian
Organizations
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
SUMMARY: DoD has adopted as final,
with changes, an interim rule amending
the Defense Federal Acquisition
Regulation Supplement (DFARS) to
implement DoD appropriations act
provisions permitting the award of sole
source contracts to small business
concerns owned by Native Hawaiian
Organizations. The rule applies to
manufacturing contracts exceeding
$5,000,000 and non-manufacturing
contracts exceeding $3,000,000 that are
awarded under the Small Business
Administration’s 8(a) Program.
DATES: Effective Date: June 16, 2006.
FOR FURTHER INFORMATION CONTACT: Ms.
Deborah Tronic, Defense Acquisition
Regulations System,
OUSD(AT&L)DPAP(DARS), IMD 3C132,
3062 Defense Pentagon, Washington, DC
20301–3062. Telephone (703) 602–0289;
facsimile (703) 602–0350. Please cite
DFARS Case 2004–D031.
SUPPLEMENTARY INFORMATION:
A. Background
DoD published an interim rule at 70
FR 43072 on July 26, 2005, to
implement Section 8021 of the DoD
Appropriations Act for Fiscal Year 2004
(Pub. L. 108–87) and Section 8021 of the
DoD Appropriations Act for Fiscal Year
2005 (Pub. L. 108–287). In addition to
providing funding for the DoD Indian
Incentive Program, these statutes
required that small business concerns
owned by Native Hawaiian
Organizations be provided the same
status as Indian tribes and Alaska Native
Corporations with regard to sole source
contract awards under the Small
Business Administration’s 8(a) Program.
The interim rule amended DFARS
219.805–1 to reflect this requirement.
PO 00000
Frm 00045
Fmt 4700
Sfmt 4700
34831
Three sources submitted comments
on the interim rule. All three supported
the rule and recommended that the rule
be made permanent. DoD has adopted
the interim rule as a final rule, with
additional changes to reflect the
provisions of Section 8020 of the DoD
Appropriations Act for Fiscal Year 2006
(Pub. L. 109–148). Section 8020
established a permanent requirement for
provision of Native Hawaiian
Organizations with the same status as
Indian tribes and Alaska Native
Corporations under the 8(a) Program.
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 has prepared a final regulatory
flexibility analysis consistent with 5
U.S.C. 604. A copy of the analysis may
be obtained from the point of contact
specified herein. The analysis is
summarized as follows:
This rule amends the DFARS to
implement DoD appropriations act
provisions permitting the award of sole
source contracts to small business
concerns owned by Native Hawaiian
Organizations. The rule applies to
manufacturing contracts exceeding
$5,000,000 and non-manufacturing
contracts exceeding $3,000,000 that are
awarded under the Small Business
Administration’s 8(a) Program. The
objective of the rule is to provide small
business concerns owned by Native
Hawaiian Organizations the same status
that is provided to Indian tribes and
Alaska Native Corporations under the
8(a) Program. Awards to these entities
are exempt from the competition
requirements that otherwise would
apply to award of manufacturing
contracts exceeding $5,000,000 and
non-manufacturing contracts exceeding
$3,000,000 under the Program. The rule
will benefit small business concerns
owned by Native Hawaiian
Organizations, by permitting sole source
contract awards to these concerns.
C. Paperwork Reduction Act
The Paperwork Reduction Act does
not apply, because the rule does not
impose any information collection
requirements that require the approval
of the Office of Management and Budget
under 44 U.S.C. 3501, et seq.
E:\FR\FM\16JNR1.SGM
16JNR1
]]>Agencies
[Federal Register Volume 71, Number 116 (Friday, June 16, 2006)]
[Rules and Regulations]
[Pages 34826-34831]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-9499]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 212, 225, and 252
RIN 0750-AF25
Defense Federal Acquisition Regulation Supplement; Contractor
Personnel Authorized to Accompany U.S. Armed Forces (DFARS Case 2005-
D013)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Interim rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: DoD has issued an interim rule amending the Defense Federal
Acquisition Regulation Supplement (DFARS) to implement DoD policy
regarding contractor personnel authorized to accompany U.S. Armed
Forces deployed outside the United States. The rule addresses the
status of contractor personnel as civilians accompanying the U.S. Armed
Forces and the responsibilities of the combatant commander regarding
the protection of contractor personnel.
DATES: Effective date: June 16, 2006.
Comment date: Comments on the interim rule should be submitted to
the address shown below on or before August 15, 2006, to be considered
in the formation of the final rule.
ADDRESSES: You may submit comments, identified by DFARS Case 2005-D013,
using any of the following methods:
[cir] Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
[cir] E-mail: dfars@osd.mil. Include DFARS Case 2005-D013 in the
subject line of the message.
[cir] Fax: (703) 602-0350.
[cir] Mail: Defense Acquisition Regulations System, Attn: Ms. Amy
Williams, OUSD(AT&L) DPAP (DARS), IMD 3C132, 3062 Defense Pentagon,
Washington, DC 20301-3062.
[cir] Hand Delivery/Courier: Defense Acquisition Regulations
System, Crystal Square 4, Suite 200A, 241 18th Street, Arlington, VA
22202-3402.
Comments received generally will be posted without change to http:/
/www.regulations.gov, including any personal information provided.
FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, (703) 602-0328.
SUPPLEMENTARY INFORMATION:
A. Background
This interim rule revises DFARS Subpart 225.74 and the clause at
DFARS 252.225-7040 to implement the policy in DoD Instruction 3020.41,
Contractor Personnel Authorized to Accompany the U.S. Armed Forces,
dated October 3, 2005. DoD Instruction 3020.41 is available via the
Internet at https://www.dtic.mil/whs/directives/corres/html/302041.htm.
The DFARS changes address the following areas:
1. Contractor participation in hostilities
Prior to this interim rule, paragraph (b) of the clause at DFARS
252.225-7040 prohibited contractor personnel from using force or
otherwise directly participating in acts likely to cause actual harm to
enemy armed forces. The interim rule revises the clause to provide for
contractor personnel other than private security contractor personnel
to use deadly force against enemy armed forces only in self-defense.
Private security contractor personnel are also authorized to use deadly
force when necessary to execute their security mission to protect
assets/persons, consistent with the mission statement contained in
their contract. It is the responsibility of the combatant commander to
ensure that private security contract mission statements do not
authorize the performance of any inherently Governmental military
functions, such as preemptive attacks,
[[Page 34827]]
or any other types of attacks. Otherwise, civilians who accompany the
U.S. Armed Forces lose their law of war protection from direct attack
if and for such time as they take a direct part in hostilities.
2. Government support
Prior to this interim rule, paragraph (c) of the clause at 252.225-
7040 required the combatant commander to develop a security plan for
protection of contractor personnel through military means unless the
terms of the contract placed the responsibility with another party. In
accordance with DoD Instruction 3020.41, paragraph 6.3.4., this interim
rule revises the clause to limit the requirement for the combatant
commander to develop such a security plan to those locations where
there is not sufficient or legitimate civil authority and the combatant
commander decides that it is in the interests of the Government to
provide security.
Paragraph (c)(3) of the clause at 252.225-7040 requires the
contractor to provide support for its personnel, except as otherwise
specified in the contract. This interim rule adds text at 225.7402-3(b)
to state that the Government will provide logistical or security
support only when the appropriate agency official, in accordance with
agency guidance, determines that Government provision of such support
is needed to ensure continuation of essential contractor services and
that the contractor cannot obtain adequate support from other sources.
This interim rule also adds text at 225.7402-3(c)(4) to require that
the contract specify whether the support is to be provided on a
reimbursable basis, citing the authority for the reimbursement.
3. Authorized to accompany the U.S. Armed Forces
The phrase ``supporting a force'' is replaced with ``authorized to
accompany U.S. Armed Forces'' throughout the rule.
4. Other military operations
The scope of the DFARS policy is changed, from ``other military
operations or exercises designated by the combatant commander,'' to
``other military operations'' and ``military exercises designated by
the combatant commander.'' A definition of ``other military
operations'' is added to paragraph (a) of the clause at 252.225-7040.
5. Not active duty
Paragraph (b)(4) is added to the clause at 252.225-7040 to clarify
that service performed by contractor personnel subject to the clause is
not active duty or service under 38 U.S.C. 106.
6. Letter of Authorization and Common Access Card
Paragraph (c)(4) is added to the clause at 252.225-7040 to address
requirements for contractor personnel to have a letter of
authorization, for consistency with the policy at 225.7402-3(d). Also,
text has been added to paragraph (e)(1)(iii) of the clause to address
requirements for Common Access Cards issued to deploying personnel to
contain the access permissions allowed by the letter of authorization.
7. Training
Paragraphs (e)(1)(v) and (vi) are added to the clause at 252.225-
7040 to address additional pre-deployment training requirements
relating to personal security and isolated personnel.
8. Military Extraterritorial Jurisdiction Act and other applicable
statutes
Paragraph (e)(2) is added to the clause at 252.225-7040 to address
the requirement for the contractor to notify its personnel that--
[cir] The Military Extraterritorial Jurisdiction Act (18 U.S.C.
3621, et seq.) and some other statutes may apply to contractor
personnel who commit offenses outside the United States; and
[cir] When there is a formal declaration of war by Congress,
contractor personnel authorized to accompany U.S. Armed Forces may be
subject to prosecution under the Uniform Code of Military Justice.
9. Deployment centers
Paragraph (f)(1) of the clause at 252.225-7040 is amended to
clarify that the deployment center must ensure that all deployment
requirements are met.
10. Personnel data list
Paragraph (g)(1) of the clause at 252.225-7040 is revised to
clarify requirements for the contractor to establish and maintain a
personnel data list.
11. Military clothing and protective equipment
Paragraph (i) of the clause at 252.225-7040 is amended to clarify
requirements relating to military clothing and protective equipment.
12. Weapons
Paragraph (j) of the clause at 252.225-7040 is revised to clarify
requirements relating to situations where contractor personnel are
authorized to carry weapons. A statement has also been added to clarify
that the liability for use of any weapon by contractor personnel rests
solely with the contractor and the contractor employee using such
weapon.
13. Personnel recovery
Paragraph (n) of the clause at 252.225-7040 is amended to include
additional terms (``isolated'' and ``detained'') to cover all
situations in which an employee might need to be recovered.
14. Changes
Paragraph (p) of the clause at 252.225-7040 is amended to include
``place of performance'' as a condition that is subject to change, in
addition to those authorized by the Changes clause. Although paragraph
(c) of the clause already addresses site changes, the term ``place of
performance'' has a broader applicability, since the term ``site'' is
normally associated with construction contracts.
This rule was subject to Office of Management and Budget review
under Executive Order 12866, dated September 30, 1993.
B. Regulatory Flexibility Act
This rule is not expected to have a significant economic impact on
a substantial number of small entities within the meaning of the
Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because application
of the rule is limited to those contracts that involve contractor
personnel authorized to accompany U.S. Armed Forces deployed outside
the United States. Therefore, DoD has not performed an initial
regulatory flexibility analysis. DoD invites comments from small
businesses and other interested parties. DoD also will consider
comments from small entities concerning the affected DFARS subparts in
accordance with 5 U.S.C. 610. Such comments should be submitted
separately and should cite DFARS Case 2005-D013.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply, because the rule does
not impose any information collection requirements that require the
approval of the Office of Management and Budget under 44 U.S.C. 3501,
et seq. Although the contract clause requires contractors to maintain
certain information regarding their personnel, DoD believes
[[Page 34828]]
that this requirement is usual and customary and does not exceed what a
contractor would maintain in the normal course of business.
D. Determination to Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense that urgent and compelling reasons exist to publish an
interim rule prior to affording the public an opportunity to comment.
This interim rule implements DoD Instruction 3020.41, Contractor
Personnel Authorized to Accompany the U.S. Armed Forces, dated October
3, 2005. Existing DFARS requirements prohibit contractor personnel from
using force or otherwise directly participating in acts likely to cause
actual harm to enemy armed forces. In accordance with DoD Instruction
3020.41, this interim rule revises the DFARS to provide for contractor
personnel to use deadly force against enemy armed forces in self-
defense or in the performance of a contract for private security
services. Comments received in response to this interim rule will be
considered in the formation of the final rule.
List of Subjects in 48 CFR Parts 212, 225, and 252
Government procurement.
Michele P. Peterson,
Editor, Defense Acquisition Regulations System.
0
Therefore, 48 CFR Parts 212, 225, and 252 are amended as follows:
0
1. The authority citation for 48 CFR Parts 212, 225, and 252 continues
to read as follows:
Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.
PART 212--ACQUISITION OF COMMERCIAL ITEMS
0
2. Section 212.301 is amended by revising paragraph (f)(vii) to read as
follows:
212.301 Solicitation provisions and contract clauses for the
acquisition of commercial items.
(f) * * *
(vii) Use the clause at 252.225-7040, Contractor Personnel
Authorized to Accompany U.S. Armed Forces Deployed Outside the United
States, as prescribed in 225.7402-4.
* * * * *
PART 225--FOREIGN ACQUISITION
0
3. Sections 225.7402 through 225.7402-4 are revised to read as follows:
225.7402 Contractor personnel authorized to accompany U.S. Armed
Forces deployed outside the United States.
225.7402-1 Scope.
This section applies to contracts that involve contractor personnel
authorized to accompany U.S. Armed Forces deployed outside the United
States in--
(a) Contingency operations;
(b) Humanitarian or peacekeeping operations;
(c) Other military operations; or
(d) Military exercises designated by the combatant commander.
225.7402-2 Definitions.
Combatant commander, other military operations, and theater of
operations, as used in this section, have the meaning given in the
clause at 252.225-7040, Contractor Personnel Authorized to Accompany
U.S. Armed Forces 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 agency shall provide logistical or security support only
when the appropriate agency official, in accordance with agency
guidance, determines in coordination with the combatant commander
that--
(1) Government provision of such support is needed to ensure
continuation of essential contractor services; and
(2) The contractor cannot obtain adequate support from other
sources.
(c) 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 Authorized to
Accompany U.S. Armed Forces 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 any other Government support to be
provided, and whether this support is provided on a reimbursable basis,
citing the authority for the reimbursement.
(d) 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 under the contract. For a sample LOA, see PGI 225.7402-
3(d).
225.7402-4 Contract clauses.
(a) Use the clause at 252.225-7040, Contractor Personnel Authorized
to Accompany U.S. Armed Forces Deployed Outside the United States, in
solicitations and contracts when contract performance requires that
contractor personnel accompany U.S. Armed Forces deployed outside the
United States in--
(1) Contingency operations;
(2) Humanitarian or peacekeeping operations;
(3) Other military operations; or
(4) Military 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).
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
4. Section 252.225-7040 is revised to read as follows:
252.225-7040 Contractor Personnel Authorized to Accompany U.S. Armed
Forces Deployed Outside the United States.
As prescribed in 225.7402-4(a), use the following clause:
Contractor Personnel Authorized To Accompany U.S. Armed Forces Deployed
Outside The United States (JUN 2006)
(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.
Other military operations means a range of military force responses
that can be projected to accomplish assigned tasks. Such operations may
include one or a combination of the following: Civic action,
humanitarian assistance, civil affairs, and other military activities
to develop positive relationships with other countries; confidence
building and other measures to reduce military tensions; military
presence; activities to convey messages to adversaries; military
[[Page 34829]]
deceptions and psychological operations; quarantines, blockades, and
harassment operations; raids; intervention operations; armed conflict
involving air, land, maritime, and strategic warfare operations;
support for law enforcement authorities to counter international
criminal activities (terrorism, narcotics trafficking, slavery, and
piracy); support for law enforcement authorities to suppress domestic
rebellion; and support for insurgency, counterinsurgency, and civil war
in foreign countries.
Theater of operations means an area defined by the combatant
commander for the conduct or support of specified operations.
(b) General.
(1) This clause applies when Contractor personnel are authorized to
accompany U.S. Armed Forces deployed outside the United States in--
(i) Contingency operations;
(ii) Humanitarian or peacekeeping operations;
(iii) Other military operations; or
(iv) Military exercises designated by the Combatant Commander.
(2) Contract performance in support of U.S. Armed Forces deployed
outside the United States may require work in dangerous or austere
conditions. The Contractor accepts the risks associated with required
contract performance in such operations.
(3) Contractor personnel are civilians accompanying the U.S. Armed
Forces.
(i) Except as provided in paragraph (b)(3)(ii) of this clause,
Contractor personnel are not authorized to use deadly force against
enemy armed forces other than in self-defense.
(ii) Private security Contractor personnel are authorized to use
deadly force only when necessary to execute their security mission to
protect assets/persons, consistent with the mission statement contained
in their contract.
(iii) Civilians who accompany the U.S. Armed Forces lose their law
of war protection from direct attack if and for such time as they take
a direct part in hostilities.
(4) Service performed by Contractor personnel subject to this
clause is not active duty or service under 38 U.S.C. 106 note.
(c) Support. (1)(i) The Combatant Commander will develop a security
plan for protection of Contractor personnel in locations where there is
not sufficient or legitimate civil authority, when the Combatant
Commander decides it is in the interests of the Government to provide
security because--
(A) The Contractor cannot obtain effective security services;
(B) Effective security services are unavailable at a reasonable
cost; or
(C) Threat conditions necessitate security through military means.
(ii) The Contracting Officer shall include in the contract the
level of protection to be provided to Contractor personnel.
(iii) In appropriate cases, the Combatant Commander may provide
security through military means, commensurate with the level of
security provided DoD civilians.
(2)(i) Generally, all Contractor personnel authorized to accompany
the U.S. Armed Forces in the theater of operations may be provided
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.
(4) Contractor personnel must have a letter of authorization issued
by the Contracting Officer in order to process through a deployment
center or to travel to, from, or within the theater of operations. The
letter of authorization also will identify any additional
authorizations, privileges, or Government support that Contractor
personnel are entitled to under this contract.
(d) Compliance with laws and regulations. The Contractor shall
comply with, and shall ensure that its personnel authorized to
accompany U.S. Armed Forces 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, including those relating to force protection, security,
health, safety, or relations and interaction with local nationals.
(e) Pre-deployment requirements. (1) The Contractor shall ensure
that the following requirements are met prior to deploying personnel in
support of U.S. Armed Forces. Specific requirements for each category
may be specified in the statement of work or elsewhere in the contract.
(i) All required security and background checks are complete and
acceptable.
(ii) 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.
(iii) 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, or other appropriate DoD
identity credential, from the deployment center. Any Common Access Card
issued to deploying personnel shall contain the access permissions
allowed by the letter of authorization issued in accordance with
paragraph (c)(4) of this clause.
(iv) Special area, 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 non-DoD personnel
traveling under DoD sponsorship.
(v) All personnel have received personal security training. At a
minimum, the training shall--
(A) Cover safety and security issues facing employees overseas;
(B) Identify safety and security contingency planning activities;
and
(C) Identify ways to utilize safety and security personnel and
other resources appropriately.
(vi) All personnel have received isolated personnel training, if
specified in the contract.
(2) The Contractor shall notify all personnel who are not a host
country national, or who are not ordinarily resident in the host
country, that--
(i) Such employees, and dependents residing with such employees,
who engage in conduct outside the United States that would constitute
an offense punishable by imprisonment for more
[[Page 34830]]
than one year if the conduct had been engaged in within the special
maritime and territorial jurisdiction of the United States, may
potentially be subject to the criminal jurisdiction of the United
States in accordance with the Military Extraterritorial Jurisdiction
Act of 2000 (18 U.S.C. 3621, et seq.);
(ii) Pursuant to the War Crimes Act (18 U.S.C. 2441), Federal
criminal jurisdiction also extends to conduct that is determined to
constitute a violation of the law of war when committed by a civilian
national of the United States;
(iii) Other laws may provide for prosecution of U.S. nationals who
commit offenses on the premises of U.S. diplomatic, consular, military
or other U.S. Government missions outside the United States (18 U.S.C.
7(9)); and
(iv) When there is a formal declaration of war by Congress,
Contractor personnel authorized to accompany U.S. Armed Forces may be
subject to prosecution under the Uniform Code of Military Justice.
(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, including the
requirements specified in paragraph (e)(1) of this clause;
(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 theater-specific policies and
procedures.
(g) Personnel data list.
(1) In accordance with DoD Instruction 3020.41, Contractor
Personnel Authorized to Accompany the U.S. Armed Forces, 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. Armed Forces as
specified in paragraph (b)(1) of this clause. The list shall include
each individual's general location in the theater of operations. 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 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 are prohibited from wearing military
clothing unless specifically authorized in writing by the Combatant
Commander. If authorized to wear military clothing, Contractor
personnel must--
(i) Wear distinctive patches, arm bands, nametags, or headgear, in
order to be distinguishable from military personnel, consistent with
force protection measures; and
(ii) Carry the written authorization with them at all times.
(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 equipment.
(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, in accordance with DoD Instruction 3020.41,
paragraph 6.3.4.1 or, if the contract is for security services,
paragraph 6.3.5.3. The Combatant Commander will determine whether to
authorize in-theater Contractor personnel to carry weapons and what
weapons and ammunition will be allowed.
(2) If the Contracting Officer, subject to the approval of the
Combatant Commander, authorizes the carrying of weapons--
(i) The Contracting Officer may authorize the Contractor to issue
Contractor-owned weapons and ammunition to specified employees; or
(ii) The [Contracting Officer to specify the appropriate
individual, e.g., Contracting Officer's Representative, Regional
Security Officer] may issue Government-furnished weapons and ammunition
to the Contractor for issuance to specified Contractor employees.
(3) The Contractor shall ensure that its personnel who are
authorized to carry weapons--
(i) Are adequately trained to carry and use them--
(A) Safely;
(B) With full understanding of, and adherence to, the rules of the
use of force issued by the Combatant Commander; and
(C) In compliance with applicable agency policies, agreements,
rules, regulations, and other applicable law;
(ii) Are not barred from possession of a firearm by 18 U.S.C. 922;
and
(iii) Adhere to all guidance and orders issued by the Combatant
Commander regarding possession, use, safety, and accountability of
weapons and ammunition.
(4) Whether or not weapons are Government-furnished, all liability
for the use of any weapon by Contractor personnel rests solely with the
Contractor and the Contractor employee using such weapon.
(5) 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.
[[Page 34831]]
(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 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 employee-
designated next of kin in the event an employee dies, requires
evacuation due to an injury, or is isolated, missing, detained,
captured, or abducted.
(2) In the case of isolated, missing, detained, 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 accompanying the U.S. Armed 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
the place of performance or Government-furnished 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 when
subcontractor personnel are authorized to accompany U.S. Armed Forces
deployed outside the United States in--
(1) Contingency operations;
(2) Humanitarian or peacekeeping operations;
(3) Other military operations; or
(4) Military exercises designated by the Combatant Commander.
(End of clause)
[FR Doc. E6-9499 Filed 6-15-06; 8:45 am]
BILLING CODE 5001-08-P
