Defense Federal Acquisition Regulation Supplement; Contractor Personnel Authorized To Accompany U.S. Armed Forces (DFARS Case 2005-D013), 16764-16777 [E8-6582]

Agencies

• Defense Acquisition Regulations System
• DEPARTMENT OF DEFENSE

[Federal Register Volume 73, Number 62 (Monday, March 31, 2008)]
[Rules and Regulations]
[Pages 16764-16777]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-6582]


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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: Final rule.

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SUMMARY: DoD has adopted as final, with changes, 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.

DATES: Effective Date: March 31, 2008.

FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, Defense Acquisition 
Regulations System, OUSD (AT&L) DPAP (DARS), IMD 3D139, 3062 Defense 
Pentagon, Washington, DC 20301-3062. Telephone 703-602-0328; facsimile 
703-602-7887. Please cite DFARS Case 2005-D013.

SUPPLEMENTARY INFORMATION: 

A. Background

    DoD published an interim rule at 71 FR 34826 on June 16, 2006, to 
implement policy found in DoD Instruction 3020.41, Contractor Personnel 
Authorized to Accompany the U.S. Armed Forces. In addition, changes to 
the Federal Acquisition Regulation (FAR) were proposed at 71 FR 40681 
on July 18, 2006, and finalized at 73 FR 10943 on February 28, 2008, to 
address the issues of contractor personnel that are providing support 
to the U.S. Government outside the United States but are not covered by 
the DFARS rule. Since the FAR and the DFARS rules are similar in many 
respects, the following discussion of comments received on the DFARS 
rule also includes relevant issues raised with regard to the FAR rule.

1. Right to Self-Defense (252.225-7040(b)(3)(i))

a. Distinction Between Self-Defense and Combat Operations
    Comment: One respondent stated that there is an inherently vague 
line between what constitutes ``defense'' and ``attack,'' which is 
plainly crossed when the terms are applied in asymmetric warfare; and 
that contractors employing ``self-defense'' measures would have to 
undertake a wide array of combat activities to ensure their safety.
    DoD Response: The DFARS rule recognizes that individuals have an 
inherent right to self-defense. It does not require self-defense, but 
authorizes it when necessary. In addition, the rule does not authorize 
preemptive measures. To the contrary, it recognizes that the actual 
conduct of an individual cannot be controlled, only governed, by 
contract terms and, therefore, emphasizes the consequences for the 
inappropriate use of force (252.225-7040(c)(3)(iii)).
b. Whether the Right of Self-Defense Should be Modified to ``Personal'' 
Self-Defense
    Comment: One respondent recommended insertion of the word 
``personal'' before ``self-defense,'' stating that this will clarify 
that civilians accompanying the force are authorized to use deadly 
force only in defense of themselves, rather than the broader concept of 
unit self-defense or preemptive self-defense.
    DoD Response: DoD does not concur with this recommendation. The 
meaning of the term ``self-defense'' may vary depending on a person's 
duties and the country or designated operational area in which the 
duties are being performed.
c. Whether the Right of Self-Defense Should be Extended to Defense 
Against Common Criminals
    Comment: One respondent stated that, since the rule will apply in 
innumerable asymmetrical environments, the phrase ``against enemy armed 
forces'' should be deleted, asserting that the right of self-defense 
should extend beyond enemy armed forces, since such defensive actions 
may be needed as protection against common criminals.
    DoD Response: The final rule removes the phrase ``against enemy 
armed forces'' from paragraph (b)(3)(i) of the DFARS clause. DoD 
believes that it is more useful to the contractor to make an overall 
statement as to what is allowed with regard to use of deadly force in 
self-defense, than to focus on the law of war authorities with regard 
to enemy armed forces. There are legitimate situations that may also 
require a reasonable exercise of self-defense against other than enemy 
armed forces, e.g., defense against common criminals or terrorists. 
When facing an attacker, it will often not be possible for the 
contractor to ascertain whether the attacker is technically an ``enemy 
armed force.'' A cross-reference has been added in paragraph 
(b)(3)(iii) of the clause, with regard to the limitations on the use of 
force specified in paragraphs (d) and (j)(3) of the clause.

2. Role of Private Security Contractors (252.225-7040(b)(3)(ii))

a. Whether a Separate Category for Private Security Contractors Is 
Necessary
    Comment: One respondent stated there is no need for private 
security contractors as a separate category if private security 
contractors (like other contractors) can only use deadly force in self-
defense.
    DoD Response: While the right to self-defense applies to all 
contractors, the rule recognizes that private security contractors have 
been given a mission to protect other assets/persons. Therefore, it is 
important that the rule reflect the broader authority of private 
security contractors with regard to use of deadly force, consistent 
with the terms and conditions of the contract.
b. Hiring Private Security Contractors as Mercenaries Violates the 
Constitution, Law, Regulations, Policy, and American Core Values
    Comment: Several respondents commented that, by allowing 
contractors to assume combat roles, the Government is allowing 
mercenaries in violation of the Constitution, the laws of the United 
States, and core American values. One law specifically identified was 5 
U.S.C. 3108, Employment of detective agencies; restrictions (the 
``Anti-Pinkerton Act''). Also identified were the DoD Manpower Mix 
Criteria and the Federal Activities Inventory Reform (FAIR) Act of 
1998, which

[[Page 16765]]

preclude contracting out core inherently governmental functions, 
especially combat functions.
    DoD Response: While not disputing the many prohibitions against the 
use of mercenaries, private security contractors are not mercenaries 
and they are not part of the armed forces. The Government is not 
contracting out combat functions. The Government has the authority to 
hire security guards worldwide. In accordance with OMB Circular A-76, 
protection of property and persons is not an inherently governmental 
function. Private security contractors may be persons accompanying the 
armed forces within the meaning of Article 4A(4) of the Geneva 
Convention III.
    In Brian X. Scott, Comp. Gen. Dec. B-298370 (Aug. 18, 2006), the 
Comptroller General of the United States concluded that solicitations 
for security services in and around Iraq violated neither the Anti-
Pinkerton Act, nor DoD policies regarding contractor personnel, because 
the services required are not ``quasi-military armed forces'' 
activities. The Comptroller General also relied on the language of the 
interim DFARS rule, which prohibits contractor personnel from 
participating in direct combat activities, as well as the provisions of 
DoD Instruction 3020.41, which makes it the responsibility of the 
combatant commander to ensure that private security contract mission 
statements do not authorize the performance of any inherently 
governmental military functions. The Comptroller General concluded that 
``* * * the services sought under the solicitations appear to comport 
with the DoD policies and regulations which state that security 
contractors are not allowed to conduct direct combat activities or 
offensive operations.''
c. Whether the Standard for Use of Deadly Force Should be Modified to 
One of ``Reasonableness''
    Comment: Paragraph (b)(3)(ii) of the DFARS clause uses ``only when 
necessary'' as the standard for describing the use of deadly force by 
security contractors. DoD Directive 5210.56, Use of Deadly Force and 
the Carrying of Firearms by DoD Personnel Engaged in Law Enforcement 
and Security Duties (E2.1.2.3.1), uses the standard of ``reasonably 
appears necessary.'' The respondent stated that, while deadly force is 
to be avoided, the ``only when necessary'' standard in the interim rule 
fails to recognize the ``reasonably appears necessary'' standard that 
is critical to split-second decisions, particularly in a war zone.
    DoD Response: DoD agrees that the DFARS rule should be consistent 
with the cited DoD Directive and has incorporated the ``reasonably 
appears necessary'' standard into the final rule.
d. Whether Protected Assets/Persons for Private Security Contractors 
Should be Limited to Non-Military Objectives
    Comment: One respondent stated the rule should be clarified to 
limit private security contractor personnel to protecting assets/
persons that are non-military objectives. This omission from the 
interim rule seems to conflict with Army Field Manual No. 3-100.21, 
which prohibits the use of contractors in a force protection role. The 
respondent also expressed concern about how to craft statements of work 
for private security contractors that do not assign inherently 
governmental functions to contractors.
    DoD Response: It is not possible to know in advance of an actual 
conflict what may become a military objective. Almost anything worth 
protecting could become a military target in wartime. As stated in 
paragraph 2 above, the Government is not contracting out combat 
functions. The United States Government has the authority to hire 
security guards worldwide. According to OMB Circular A-76, Performance 
of Commercial Activities, protection of property and persons is not an 
inherently governmental function (see FAR 7.503(d)(19)). DoD 
Instruction 3020.41 provides limitations and safeguards for private 
security contracts, including legal review on a case-by-case basis. 
Paragraph 6.3.5 of that Instruction states that, ``Whether a particular 
use of contract security personnel to protect military assets is 
permissible is dependent on the facts and requires legal analysis.'' 
The DoD Instruction also states in paragraph 6.3.5.2, ``Contracts shall 
be used cautiously in contingency operations where major combat 
operations are ongoing or imminent. In these situations, contract 
security services will not be authorized to guard U.S. or coalition 
military supply routes, military facilities, military personnel, or 
military property except as specifically authorized by the geographic 
Combatant Commander (non-delegable).'' Since these requirements must be 
fulfilled before the private security contract is entered into, it is 
not necessary or appropriate to include these requirements in the DFARS 
rule.
e. Use of the Term ``Mission Statement''
    Comments: Paragraph (b)(3)(ii) of the DFARS clause authorizes 
private security contractor personnel to use deadly force only when 
``necessary to execute their security mission to protect assets/
persons, consistent with the mission statement contained in their 
contract.'' Several respondents stated that the use of the term 
``mission statement'' in that sentence caused confusion and should be 
clarified. One respondent noted that not all contracts for security 
services will contain a ``mission statement'' as such. Statements of 
work may contain sections entitled ``objectives,'' ``purpose,'' or 
``scope of work,'' which may or may not contain the equivalent of a 
mission statement. The respondent further noted that the need to deploy 
security personnel quickly could result in a mission statement (or its 
equivalent) that may not be as precise as desired and, therefore, ill-
suited to serve as part of a standard for when deadly force is 
authorized.
    Other respondents requested clarification as to whether 
subcontractors would be considered private security contractors, or 
whether the term ``private security contractor'' was limited to 
contractors that have a contract directly with the Government. One 
respondent stated there is no guidance as to who would qualify as 
private security contractor personnel, creating uncertainty as to 
whether private security companies retained by a prime contractor would 
be covered if the prime contractor drafted a mission statement for its 
private security subcontractor.
    DoD Response: DoD agrees that the term ``mission statement'' could 
cause confusion and has replaced ``mission statement'' with ``terms and 
conditions'' in paragraph (b)(3)(ii) of the clause. DoD does not 
believe that any clarification with regard to subcontractors is 
necessary. When a clause flows down to subcontractors, the terms are 
changed appropriately to reflect the relationship of the parties. 
Nothing in the rule indicates that private security contractors cannot 
be subcontractors.
f. Authority of Combatant Commander To ``Create Missions''
    Comment: One respondent stated that the rule delegates extensive 
authority to combatant commanders to direct contractor actions under 
both support and security contracts. The respondent further stated that 
granting such nearly unlimited authority to combatant commanders to 
create missions is inconsistent with laws and regulations that convey 
such authority to contracting officers and serves to undermine their 
authority.
    DoD Response: The combatant commander is not authorized to create

[[Page 16766]]

missions for private security contractors. A contractor must perform in 
accordance with the terms and conditions of the contract. The combatant 
commander is responsible for reviewing/approving any contractor request 
to carry weapons and evaluating whether the planned use of such weapons 
is appropriate.
g. Approval of Private Security Contractors
    Comment: One respondent questioned whether there will be a vetting 
process and a list of approved Private Security Contractors from which 
DoD contractors or their subcontractors may acquire services.
    DoD Response: Contractors are responsible for providing their own 
security support and for the selection and performance of 
subcontractors. However, the Government may reserve the right to 
approve subcontracts.
h. Definition of ``Private Security Contractor''
    Comment: Several respondents requested a definition of ``private 
security contractor.'' One respondent noted that DoD Instruction 
3020.41 uses the term ``security services.''
    DoD Response: DoD considered defining ``private security 
contractor'' to mean ``a contractor that has been hired to provide 
security, either by the Government or as a subcontractor.'' However, in 
considering this definition, DoD realized that, in some circumstances, 
a contractor whose primary function is not security may directly hire a 
few personnel to provide security, rather than subcontracting to a 
private security contractor. The authority for use of deadly force 
ultimately rests with the individuals who are providing the security, 
whether as direct hires or as employees of a subcontractor. Therefore, 
the final rule amends paragraph (b)(3)(ii) of the contract clause to 
replace the term ``private security contractor personnel'' with 
``contractor personnel performing security functions.'' In addition, 
since some contractor personnel performing security functions are 
employees, rather than hired by contract, paragraph (b)(3)(ii) of the 
clause has been further amended to address execution of the security 
mission by such personnel consistent with their job description and 
terms of employment.
i. Coordination and Communication With Private Security Contractors
    Comment: One respondent stated that DoD is coordinating 
responsibilities and functions among the military and contractor 
security forces in Iraq and requested that the DFARS state that DoD 
will similarly coordinate security efforts in future theaters of 
operation. In addition, the respondent stated that the DFARS should 
name an organization to coordinate the overall activities of the 
private security contractors to meet U.S. tactical and strategic goals 
and that DoD should have a process by which it communicates and 
receives threat information to and from contractors operating in the 
field, as required by DoD Instruction 3020.41. Further, DoD Instruction 
3020.41, paragraph 6.3.5.3.3, also requires a plan as to how 
appropriate assistance will be provided to contractor security 
personnel who become engaged in hostile situations.
    DoD Response: Such plans for coordination and communication are the 
responsibility of the combatant commander and are outside the scope of 
this DFARS rule. These issues must be addressed before the combatant 
commander approves the arming of contingency contractor personnel to 
provide security services. Once approved, the terms and conditions of 
the contract will reflect these requirements as appropriate.

3. Consequences of Inappropriate Use of Force (252.225-7040(b)(3)(iii))

a. Loss of ``Law of War'' Protection From Direct Attack
    Comment: The statement in paragraph (b)(3)(iii) of the contract 
clause, that civilians lose their law of war protection from direct 
attack if and for such time as they take a direct part in hostilities, 
raised numerous questions regarding its meaning. One respondent 
considered this to be a correct statement under the international law 
of war, but that it may call into question the foundation for the 
global war on terrorism and targeting ``unlawful combatants'' when they 
are not taking a direct part in hostilities.
    DoD Response: The statement in question has been excluded from the 
final rule. DoD considered the statement to be unnecessary and 
potentially confusing. Paragraph (b)(3)(i) of the clause establishes 
the right to self-defense. Paragraph (b)(3)(ii) sets forth a limited 
right for some contractor personnel to protect assets/persons. A new 
paragraph (b)(3)(iii) has been added to address the consequences of the 
inappropriate use of force.
b. Consequences Other Than ``Law of War'' Consequences
    Comment: Several respondents stated that the notice to contractors 
relating to the personal and legal impact of directly participating in 
hostilities is incomplete. Without including the cautionary language of 
DoD Instruction 3020.41 relating to possible criminal and civil 
liability, civilians accompanying the armed forces might erroneously 
believe the only impact of their direct participation is that they 
would be lawful targets during such time that they are participating in 
hostilities. One respondent was also concerned that, by not mentioning 
potential immunity, it could be argued that the clause waives otherwise 
available immunities. The respondents suggested addition of language 
stating that, ``Since civilians accompanying the force do not have 
combatant immunity, unless immune from host nation jurisdiction by 
virtue of an international agreement or international law, contingency 
contractor personnel are advised that inappropriate use of force could 
subject them to U.S. or host nation prosecution and civil liability.''
    DoD Response: The new paragraph (b)(3)(iii) in the contract clause 
incorporates the information found in DoD Instruction 3020.41 relating 
to possible immunity and possible criminal and civil liability for 
contractor personnel who inappropriately use force.

4. Contractors Are Not Active Duty (252.225-7040(b)(4))

    Comment: One respondent was concerned about paragraph (b)(4) of the 
contract clause, which states, ``Service performed by Contractor 
personnel subject to this clause is not active duty or service under 38 
U.S.C. 106.'' The respondent stated that the Note under 38 U.S.C. 106 
explains that the Secretary of Defense is to determine what constitutes 
active duty or service under this statute for Women's Air Forces 
Service Pilots who were attached to the Army Air Corps during World War 
II and persons in similarly situated groups who rendered services in a 
capacity considered civilian employment or contractual service. The 
respondent stated that the determination can only be made 
retrospectively.
    DoD Response: Paragraph (b)(4) of the clause correctly states the 
terms of service for Defense and non-Defense contractors. Contractors 
should hold no expectations under this clause that their service will 
qualify as ``active duty or service.'' The Note under 38 U.S.C. 106 
requires that determinations for any applicant group be based on (1) 
regulations prescribed by the Secretary, and (2) a full review of the 
historical records and any other evidence pertaining to the service of 
any such group. In promulgating the DFARS, DoD has issued a regulation 
prescribed by

[[Page 16767]]

the Secretary. This DoD regulation establishes the historical record 
that shall be used in future review of the historical evidence 
surrounding a contractor's service under this clause. DoD policy is 
that contractors operating under this clause shall not be attached to 
the armed forces in a way similar to the Women's Air Forces Service 
Pilots of World War II. Contractors today are not being called upon to 
obligate themselves in the service of the country in the same way as 
the Women's Air Forces Service Pilots or any of the other groups listed 
in 38 U.S.C. 106.

5. Weapons (252.225-7040(j))

a. Nature of the Authorized Weapons
    Comment: One respondent stated there is no reasonable limitation on 
the nature of the weapons that a contractor is to handle, whether as a 
``self-defense'' contractor or a private security contractor. This 
range could include anything from small arms to major weapons systems.
    DoD Response: The possible situations are too numerous to permit 
prescription of specific weapons for each situation. However, it is 
unlikely that a contractor would attempt to bring a major weapon system 
onto the battlefield, or that the combatant commander would authorize 
such weapons.
b. Combatant Commander Rules on the Use of Force
    Comment: One respondent stated that there is no reasonable means by 
which a combatant commander can generate rules regarding the use of 
force by contractors. The respondent further stated that the rules must 
be related to doctrine, dogma, rules of engagement, etc., and these are 
formulated well above the level of the combatant commander. Since the 
rules may be different, contractor personnel would be subject to a 
range of serious risks and liabilities.
    DoD Response: It is the authority of the combatant commander to 
perform those functions of command over assigned forces involving 
organizing and employing commands and forces; assigning tasks; 
designating objectives; and giving authoritative direction over all 
aspects of military operations, joint training, and logistics necessary 
to accomplish the missions assigned. Operational control is inherent in 
combatant command (command authority) and, therefore, provides full 
authority to organize and employ commands and forces as the combatant 
commander considers necessary to accomplish assigned missions. The 
combatant commander also establishes rules of engagement in the 
designated operational area, and does take into consideration many 
influences such as doctrine. The combatant commander will seek advice 
from experts in areas such as law and security before making such 
decisions. Since the rules regarding contractor authorization to carry 
firearms will vary according to the phase of the conflict, the 
combatant commander is the most informed and able individual to 
determine whether a contractor should carry weapons.
c. Law of Armed Conflict Issues
    Comment: One respondent stated that the notion that the Government 
assumes no responsibility whatsoever for the use of weapons on a 
battlefield by a contractor authorized and required to use such 
weapons, as the practical effect of the contract requirements, makes no 
sense and is certain to cause contractual law of armed conflict and 
other problems.
    DoD Response: There have been no issues on the law of armed 
conflict for contractors carrying weapons, because in the current 
conflicts there are no enemy armed forces that are lawful combatants 
and no enemy government to provide them prisoner of war status and 
protections if captured. DoD also notes that, at the beginning of the 
current conflict, contractors were not permitted to carry weapons at 
all. During the post-major operations phase, civilian contractors that 
have been brought in for a variety of security operations are 
authorized (and required) to provide their own weapons. The obvious 
safety/security issues connected with carrying a weapon far outweigh 
any theoretical issues.
d. Liability for Use of Weapons
    Comment: Several respondents expressed concern that the Government 
authorizes and sometimes requires contractor personnel to carry 
weapons, but that it places sole liability for the use of weapons on 
contractors and contractor personnel, even if the contractor was acting 
in strict accordance with the contract statement of work or under 
specific instructions from the contracting officer or the combatant 
commander (252.225-7040(j)(4)). One respondent considered that 
statement to be inconsistent with prior regulatory history, citing the 
statement in the preamble to the final DFARS rule published on May 5, 
2005 (70 FR 23792), that ``risk associated with inherently Governmental 
functions will remain with the Government.''
    DoD Response: While a contractor may be authorized to carry and use 
weapons, the contractor remains responsible for the performance and 
conduct of its personnel. A contractor has discretion in seeking 
authority for any of its employees to carry and use a weapon. The 
contractor is responsible for ensuring that its personnel who are 
authorized to carry weapons are adequately trained to carry and use 
them safely, adhere to the rules on the use of force, comply with law 
and agreements, and are not barred from possession of a firearm. 
Inappropriate use of force could subject a contractor or its 
subcontractors or employees to prosecution or civil liability under the 
laws of the United States and the host nation. The Government cannot 
indemnify a contractor and its personnel against claims for damages or 
injury or grant immunity from prosecution associated with the use of 
weapons. With regard to the statement on inherently governmental 
functions, this rule does not authorize contractors to perform any 
inherently governmental functions.

6. Risk/Liability to Third Parties/Indemnification (252.225-7040(b)(2))

    Comment: Many respondents expressed concern that the DFARS rule 
shifts to contractors all risks associated with performing the 
contract, and may lead courts to deny contractors certain defenses in 
tort litigation. The respondents cited decisions by State and Federal 
courts arising out of injuries or deaths to third parties, including 
military members and civilians. Generally, the courts absolved 
contractors of liability to third parties where the Government carried 
ultimate responsibility for the operation. For example--
    [cir] In Smith v. Halliburton Co., No. H-06-0462, 2006 WL 1342823 
(S.D. Tex. May 16, 2006) and Whitaker v. Kellogg Brown & Root, Inc., 
No. 05-CV-78, 2006 WL 1876922 (M.D. Ga. July 6, 2006), the courts found 
there was no risk and no liability associated with contractor 
performance when active duty military members were injured in 
situations where the military (or the injured member himself) was 
responsible for force protection of military members.
    [cir] In Koohi v. United States, 976 F.2d 1328 (9th Cir. 1992), the 
contractor bore no risk and no liability for military decisions aboard 
the U.S.S. Vincennes to shoot down an approaching aircraft during a 
time of war, and the contractor had no responsibility to design or 
manufacture the Aegis weapon system to prevent such use by military 
members.
    Some respondents expressed concern that the acceptance of risk may 
preclude

[[Page 16768]]

grants of indemnification. One respondent stated that the rule could 
adversely affect indemnification that would otherwise be available. The 
clause at FAR 52.228-7, Insurance-Liability to Third Persons, provides 
limited indemnification, but provides that contractors shall not be 
reimbursed for liabilities for which the contractor is otherwise 
responsible under the express terms of any clause specified in the 
Schedule or elsewhere in the contract. The respondent also stated that 
the provisions requiring the contractor to accept certain risks and 
liabilities could also be the basis to deny pre- or post-award requests 
for indemnification under Public Law 85-804. Another respondent cited a 
decision by a DoD Contract Appeals Board in which the Board declined a 
contractor's request for indemnification under Public Law 85-804 
because, according to the Board, contractors should not be able to 
deliberately enter into contractual arrangements with full knowledge 
that a risk is involved and yet propose unrealistically low prices on 
the hopes they may later gain indemnification. The respondents 
recommended that the United States either identify, quantify, and 
accept all the risk or insert language that would immunize contractors 
from tort liability. Specifically, several respondents recommended 
adding the statement, ``Notwithstanding any other clause in this 
contract, nothing in this clause should be interpreted to affect any 
defense or immunity that may be available to the contractor in 
connection with third-party claims, or to enlarge or diminish any 
indemnification a contractor may have under this contract or as may be 
available under the law.'' There was also concern that, by accepting 
all risks of performance, contractors would not be able to obtain 
workers compensation insurance or reimbursement under the Defense Base 
Act. One respondent recommended that the contractor's share of risk in 
the rule be revised as follows: ``Except as otherwise provided in the 
contract, the Contractor accepts the risks associated with required 
contract performance in such operations.''
    DoD Response: DoD believes that the rule adequately allocates 
risks, allows for equitable adjustments, and permits contractors to 
defend against potential third-party claims. Contractors are in the 
best position to plan and perform their duties in ways that avoid 
injuring third parties. Contractors are equally or more responsible to 
research host nation laws and proposed operating environments and to 
negotiate and price the terms of each contract effectively. 
Accordingly, the clause retains the current rule of law, holding 
contractors accountable for the negligent or willful actions of their 
employees, officers, and subcontractors. This is consistent with 
existing laws and rules, including the clause at FAR 52.228-7, 
Insurance-Liability to Third Persons, and FAR Part 50, Extraordinary 
Contractual Actions, as well as the court and board decisions cited in 
the comments. The current law regarding the Government Contractor 
Defense (e.g., the line of cases following Boyle v. United 
Technologies, 487 U.S. 500, 108 S. Ct. 2510 (1988)) extends to 
manufacturers immunity when the Government prepares or approves 
relatively precise design or production specifications after making 
sovereign decisions balancing known risks against Government budgets 
and other factors in control of the Government. This rule covers 
service contracts, not manufacturing, and it makes no changes to 
existing rules regarding liability. The public policy rationale behind 
Boyle does not apply when a performance-based statement of work is used 
in a services contract, because the Government does not, in fact, 
exercise specific control over the actions and decisions of the 
contractor or its employees or subcontractors. Asking a contractor to 
ensure its employees comply with host nation law and other authorities 
does not amount to the precise control that would be requisite to shift 
away from a contractor's accountability for its own actions. 
Contractors will still be able to defend themselves when injuries to 
third parties are caused by the actions or decisions of the Government. 
However, to the extent that contractors are currently seeking to avoid 
accountability to third parties for their own actions by raising 
defenses based on the sovereignty of the United States, this rule 
should not send a signal that would invite courts to shift the risk of 
loss to innocent third parties. The language in the clause is intended 
to encourage contractors to properly assess the risks involved and take 
proper precautions. However, to preclude the misunderstanding that 
asking the contractor to ``accept all risks'' is an attempt to shift 
all risk of performance to the contractor without regard to specific 
provisions in the contract, the statement in the rule regarding risk 
has been amended to add the lead-in phrase, ``Except as otherwise 
provided in the contract''.

7. Definition of Terms (252.225-7040(a))

a. Theater of Operations
    Comment: One respondent stated that the term ``theater of 
operations'' is unwarranted by any legitimate purposes suggested by the 
rule, and that this term, if defined at all, should rest in the hands 
of the President or the Secretary of Defense.
    DoD Response: The term was included in the interim rule because it 
defined the geographic area to which the clause was applicable. The 
combatant commander has the authority to define a ``theater of 
operations'' within the geographic area for which the combatant 
commander is responsible. However, consistent with DoD Joint 
Publication 3-0, Joint Operations, DoD has determined that the term 
``designated operational area'' is more appropriate to describe the 
applicability of the rule, as this term includes the theater of 
operations as well as such descriptors as theater of war, joint 
operations area, amphibious objective area, joint special operations 
area, and area of operations. Therefore, the term ``theater of 
operations'' has been replaced with the term ``designated operational 
area'' throughout the rule.
b. Other Military Operations
    Comment: Two respondents noted that the term ``other military 
operations'' is very broadly defined. One respondent stated that the 
term is either over-expansive, or unnecessary, because it is so 
inclusive as to suggest nearly any type of military engagement likely 
to be carried out in the first half of the current century.
    DoD Response: DoD agrees that the definition was very broad, 
because it was intended to cover every type of military operation. 
Since the final rule applies to ``other military operations'' only when 
designated by the combatant commander, definition of this term is no 
longer necessary and has been excluded from the final rule.

8. Terms Not Defined

a. Enemy Armed Forces
    Comment: Two respondents objected to the use of the term ``enemy 
armed forces'' in the rule without definition.
    DoD Response: The term ``enemy armed forces'' has been excluded 
from the final rule.
b. ``Law of War,'' ``Law of War Protections,'' and ``Take Direct Part 
in Hostilities''
    Comment: One respondent stated that terms of art such as ``law of 
war,'' ``law of war protections,'' and ``take direct part in 
hostilities'' are not defined in the

[[Page 16769]]

rule and likely cannot be defined satisfactorily in the DFARS. The 
respondent further stated that understanding the concepts underlying 
these terms is crucial to preparing statements of work for and 
administering contracts that will send contractor employees into 
hostile environments. Therefore, the respondent recommended that the 
DFARS text include some discussion of these terms and the need for 
contracting personnel to seek advice when dealing with these terms.
    DoD Response: DoD agrees that these terms cannot be defined 
satisfactorily in the DFARS and has removed the terms from the final 
DFARS rule. However, DoD is developing law of war training that will be 
available to contractor personnel.
c. ``Mission Essential,'' ``Essential Contractor Services,'' ``Security 
Support,'' ``Security Mission,'' ``Security Plan,'' ``Mandatory 
Evacuation,'' and ``Non-Mandatory Evacuation''
    Comment: Two respondents stated that the interim rule used these 
terms, which are not defined, and, except for ``essential contractor 
services'' and ``security plan,'' are not used in DoD Instruction 
3020.41. The respondents considered these terms critical to the 
contractor in determining and pricing its obligations under a 
solicitation and resulting contract.
    DoD Response: ``Mission essential'' is the term used in DoD 
Instruction 3020.37, Continuation of Essential DoD Contractor Services 
During Crises. ``Essential contractor services'' is defined in DoD 
Instruction 3020.41. The Government identifies the mission essential 
personnel and essential contractor services to the contractor, so it is 
unnecessary to define these terms in the DFARS. ``Security support'' 
and ``security mission'' are used with their common dictionary meaning; 
however, the terms and conditions of the contract will define the 
mission and will also specify if security support will be provided. DoD 
Instruction 3020.41, paragraph 6.3.4, addresses the requirements for a 
security plan. Since the combatant commander prepares the security 
plan, these requirements do not need to be repeated in the DFARS. It is 
also unnecessary to define ``mandatory evacuation'' and ``non-mandatory 
evacuation'' in the DFARS, as these terms are used with their common 
dictionary meaning, and the Government will identify any evacuation 
order as mandatory or non-mandatory. The contractor will be given 
appropriate instructions in the event an evacuation order is issued.

9. Scope of Application

a. Commercial Items
    Comment: One respondent expressed concern that DFARS 212.301(f) 
requires application of the contract clause across-the-board to 
commercial items. The respondent recommended that the clause apply only 
if the acquisition of commercial items is for performance of contractor 
personnel outside the United States in a covered theater of operations.
    DoD Response: DoD agrees that the clause should apply only if the 
acquisition of commercial items is for performance of contractor 
personnel outside the United States in a designated operational area. 
However, the respondent has misinterpreted the requirement at DFARS 
212.301(f)(vii). This paragraph states that the clause at DFARS 
252.225-7040 is to be used in accordance with the prescription at DFARS 
225.7402-4, which specifies the criteria for use of the clause.
b. Military Operations and exercises
    Comment: One respondent expressed concern regarding application of 
the rule to a wide range of military operations and exercises that do 
not require special treatment. The rule prescribes use of the clause 
when contractor personnel will be required to perform outside the 
United States in a theater of operations during ``other military 
operations'' or ``military exercises designated by the combatant 
commander.'' The respondent recommended that the final rule include 
criteria for when the combatant commander should invoke the authority 
to require use of the clause.
    DoD Response: DoD has amended the rule to clarify that ``designated 
by the combatant commander'' applies to military operations as well as 
military exercises. However, DoD does not consider it appropriate for 
the DFARS to prescribe criteria to the combatant commander for use of 
the clause. The combatant commander is in the best position to 
determine whether the circumstances in a designated operational area 
warrant use of the clause. In addition, the final rule clarifies that 
any of the types of military operations covered by the scope of the 
rule may include stability operations.
c. Designation of Specific Geographic Area
    Comment: One respondent questioned whether the combatant commander 
should designate a specific geographic area for applicability of the 
clause.
    DoD Response: DoD believes that the scope of the DFARS clause 
sufficiently defines the area of applicability. The designated 
operational area is a specific geographic area, defined by the 
combatant commander or the subordinate joint force commander for the 
conduct or support of specified military operations.

10. Logistical and Security Support (225.7402-3 and 252.225-7040(C))

a. Lack of Force Protection Represents a Change in Policy
    Comment: Two respondents stated that the lack of committed force 
protection represents a drastic change in policy for contractors 
accompanying U.S. Armed Forces. Another respondent considered that this 
is the penultimate paragraph in the transfer of responsibility for 
force protection from the military to contractors, and that it is ill-
considered. One of the respondents noted that, prior to the interim 
rule, the DFARS 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. That respondent strongly opposed the changes made by the interim 
rule, which limit the requirement for the combatant commander to 
develop a security plan to those locations where there is not 
sufficient or legitimate civil authority and where the commander 
decides the provision of security is in the interests of the 
Government. The respondent stated that this reversal of policy will--
    (1) Have a significant impact on the ability of contractors to 
provide future support to DoD (bid/proposal costs will reflect higher 
costs related to the contractor's assumption of security costs);
    (2) Have a direct effect on systems contractors supporting major 
weapons systems; and
    (3) Substantially increase contract prices.
    The respondent also cited DoD Joint Publication 4-0, Chapter V, and 
Enclosure 2 to DoD Instruction 3020.41 as support for the statements 
that DoD affirmatively had the obligation to provide force protection 
for contractors providing direct support to the military. Another of 
the respondents questioned how the decision that DoD presumably will 
not provide a security plan is consistent with protecting contractor 
resources vital to accomplishing the U.S. mission.
    DoD Response: In most areas of the world, it is the responsibility 
of the host nation to provide protection for civilians working in their 
country. It is clearly unnecessary for the combatant commander to 
prepare a security plan in

[[Page 16770]]

locations where there is sufficient legitimate civil authority. The 
added provisions are from DoD Instruction 3020.41, which provides that 
the combatant commander must decide that to provide security is in the 
interests of the Government. The combatant commander is in the best 
position to judge the circumstances in the designated operational area 
and what resources are available to him and to the contractors. The 
writers of the regulations cannot commit the U.S. Armed Forces to 
provide protection to contractor personnel performing in areas of 
conflict, beyond what is provided for in DoD Instruction 3020.41. With 
regard to the reference to DoD Joint Publication 4-0, Chapter V, this 
chapter (paragraph 13a.) specifically states that force protection 
responsibility for DoD contractor employees is a contractor 
responsibility, unless valid contract terms place that responsibility 
with another party. With regard to the reference to Enclosure 2 to DoD 
Instruction 3020.41, the definition of ``Contractors Deploying with the 
Force'' in Enclosure 2 states that contractors deploying with the force 
usually receive Government-furnished support similar to DoD civilians. 
This statement addresses logistics support, not force protection.
    The rule does not state that the combatant commander will not 
provide a security plan. The rule specifically states that the 
combatant commander will provide a security plan for protection of 
contractor personnel in locations where there is not sufficient 
legitimate civil authority and the combatant commander decides it is in 
the interests of the Government to provide security, especially if 
threat conditions necessitate security through military means. The rule 
focuses the application of limited resources in those situations where 
most needed.
b. Timing of Disclosure
    Comment: One respondent stated that timing of the disclosure of 
agency support could impact an offeror's proposal costs and recommended 
that, at a minimum, agencies be required to include support 
information, not just in the contract, but also in the solicitation. 
Another respondent stated that the solicitation should specify whether 
DoD will provide a security plan. Contractors need sufficient time to 
decide whether they want to bear the additional risk of performance or 
make suitable arrangements with a private security firm or its own 
personnel. A third respondent requested that the final rule clarify 
whether a security plan, if any, will be developed prior to the release 
of the solicitation.
    DoD Response: DoD agrees that the timing of the disclosure of the 
agency's decision to provide or not provide support could have an 
impact on proposal costs. Therefore, DFARS 225.7402-3(c) has been 
amended to add a requirement for identification of this information in 
the solicitation.
c. Changes in Government-Provided Support
    Comment: One respondent recommended that any changes to Government-
provided security support should expressly require an equitable 
adjustment to the contract.
    DoD Response: DoD does not believe it is necessary to expressly 
address this issue in the DFARS rule. Any need for equitable adjustment 
will be evaluated in accordance with the Changes clause included in the 
contract.
d. Agency/Combatant Commander Cannot Know if Adequate Support is 
Available
    Comment: One respondent commented that one of the conditions 
precedent to Government support is a determination by the Government 
that adequate support cannot be obtained by the contractor from other 
sources. The respondent stated that, whether or not competitors can 
obtain adequate support from other sources is outside of an agency's 
knowledge and that this kind of knowledge involved marketplace issues 
that vary significantly by the size and experience of the contractor. 
The respondent also stated that two of the three key elements of the 
combatant commander's decision required by the DFARS rule are outside 
of his expertise and scope of knowledge--namely whether the specific 
contractor can obtain effective security services and whether effective 
security services are available at a reasonable price.
    DoD Response: DoD does not agree that the Government would not be 
able to determine whether the contractor was able to obtain adequate 
support from other sources. The Government official/combatant commander 
would not be making a decision in a vacuum, but would have staff to 
perform necessary market research and consult with the contractor as 
necessary. The final rule contains an amendment at 225.7402-3(b)(2) to 
include ``reasonable cost'' as a criterion for contractor-obtained 
support, consistent with the language at 252.225-7040(c)(1)(i)(B).
e. Security Costs Should Be a Cost-Reimbursement Line Item
    Comment: One respondent stated that security costs should be a 
cost-reimbursement line item, even in a fixed-price contract, or should 
provide for equitable adjustment to reflect material changes in the 
threat environment.
    DoD Response: In accordance with FAR 16.103, selecting the 
appropriate contract type is generally a matter of negotiation and 
requires the exercise of sound judgment. The contractor's 
responsibility for the performance costs and the profit/fee incentives 
offered are tailored to the uncertainties involved in contract 
performance. While DoD acknowledges that there may be a high degree of 
uncertainty in the costs for security, the determination of how to 
handle that uncertainty is a matter of negotiation rather than 
regulation.
f. Shift Mid-Stream
    Comment: One respondent stated that existing contracts with 
military force protection could be impacted midstream by the DFARS rule 
and that contractors will be required to either shift their work plan 
and price such changes accordingly or decline the work.
    DoD Response: This rule does not impact existing contracts. DoD 
does not plan to retroactively modify contracts. If the combatant 
commander has established a security plan and is currently providing 
force protection, there is no reason to believe that this rule would 
result in a change to the existing arrangements.
g. Firms Unwilling To Bid
    Comment: One respondent stated that many firms, aware that they 
might no longer be provided military force protection, might decline 
new overseas DoD work due to the often dangerous or austere conditions.
    DoD Response: The conditions are often dangerous or austere, and 
military protection may not be available. If firms are unwilling to 
cope with such conditions, they should not bid.
h. Insufficient Infrastructure
    Comment: Regarding non-security support, one respondent noted that 
paragraph (c)(3) of the DFARS clause states that, unless specified 
elsewhere in the contract, the contractor is responsible for all other 
support required for its personnel engaged in a theater of operations. 
The respondent further noted that, in some theaters of operations, the 
local infrastructure might be insufficient or the military situation 
may limit or restrict the

[[Page 16771]]

contractor's ability to provide such support.
    DoD Response: Because of such difficulties, the DFARS clause 
provides for logistical support when such support is needed to ensure 
continuation of essential contractor services and the contractor cannot 
obtain adequate services. However, the contractor cannot assume that 
such services will be provided unless it has been arranged and is 
specified in the contract.
i. Provision of Care
    Comment: One respondent noted that paragraph (c)(2)(i) of the DFARS 
clause states that all contractor personnel ``may be provided'' certain 
types of care. The respondent expressed concern that this paragraph 
implies there is discretion not to provide such care, but with no 
guidance as to how this discretion is to be exercised. The respondent 
recommended revision of the phrase ``may be provided'' to ``are 
authorized to receive.''
    DoD Response: There was no intent to imply that access to such care 
would be denied, but rather that DoD could not commit to providing it 
in all circumstances. The phrase has been revised as recommended by the 
respondent.

11. Compliance With Laws, Regulations, Directives (252.225-7040(d))

a. Lack of Access to Necessary Information on Laws, Regulations, and 
Directives
    Paragraph (d) of the DFARS clause requires the contractor to comply 
with, and ensure that its deployed personnel are familiar with and 
comply with, all applicable laws, rules, and regulations, including 
those of the host country, all treaties and international agreements, 
all U.S. regulations, and all orders, directives, and instructions 
issued by the combatant commander.
    Comment: One respondent stated that rarely will contractors, let 
alone offerors, have access to any (and certainly not all) relevant 
orders, directives, instructions, policies, and procedures of the 
combatant commander, even in those narrow functional areas specified in 
the clause. The respondent also states that frequently a contractor is 
asked to deploy to countries or areas of the world on short notice 
without extended advance notice and without meaningful access to 
information on relevant foreign and local laws.
    DoD Response: Paragraph (d) of the DFARS clause reinforces the 
existing obligation for contractor personnel to comply with the laws 
and regulations applicable to the contract. Contractors have access to 
all of these laws and regulations, and country studies are available 
online at https://www.state.gov. Therefore, a contractor may ascertain 
on its own the laws and regulations necessary to comply with paragraph 
(d) of the clause. In addition, a contractor supporting contingency 
operations should have access to any orders, directive, instructions, 
policies, and procedures of the combatant commander that affect 
contract performance in the designated operational area. The Web site 
at https://www.acq.osd.mil/dpap/pacc/cc/areas_of_responsibility.html 
links directly to individual combatant commands and countries to 
provide the information necessary for operating in that area.
b. Varying Need for Extensive Information
    Comment: One respondent stated that deployed employees may have no 
need for certain types of information that are unrelated to their 
specific work assignments.
    DoD Response: The DFARS clause only requires knowledge of 
applicable laws and regulations. If certain laws or regulations are not 
applicable to particular employees, the information provided to those 
employees should be tailored as appropriate.
c. Inconsistency Between U.S. Laws and Host or Third Country National 
Laws
    Comment: One respondent recommended that the DFARS clause address 
how U.S. contractors are to resolve conflicts between compliance with 
U.S. law and any inconsistent host or third country national laws. 
Another respondent recommended establishment of an order of precedence 
among the contract, statement of work, DFARS clauses, DoD instructions 
and directives, and combatant commander orders (written or oral).
    DoD Response: DoD does not agree with the recommended changes. The 
resolution of conflicts between U.S. and host or third country national 
laws must be analyzed on a case-by-case basis and, therefore, is beyond 
the scope and intent of the regulations. Also, paragraph (d) of the 
DFARS clause is a reminder of the existing obligation to comply with 
the applicable laws, regulations, and international agreements 
specified therein. It is the contractor's responsibility to make the 
best possible interpretations and determinations when deciding which 
law or regulation takes precedence in the event of a conflict. With 
regard to the orders of the combatant commander, see the following 
paragraph.
    d. Authority of the Combatant Commander
    Comment: One respondent expressed concern that the broad authority 
in paragraph (d)(4) of the DFARS clause would allow the combatant 
commander to become unduly involved in the contracting process. In 
addition, this paragraph could be interpreted as empowering combatant 
commanders to issue instructions for individual contracts on a wide 
spectrum of matters.
    DoD Response: Paragraph (d)(4) of the clause is a reminder of the 
existing obligation for contractor personnel to comply with laws and 
regulations applicable to the contract. It does not provide new 
authority for combatant commanders to direct the contracting activities 
of other Government agencies. However, paragraph (d)(4) has been 
amended to clarify that only the contracting officer is authorized to 
modify the terms and conditions of the contract.
e. Ensure That the Statement of Work Does Not Violate Host Nation or 
International Law
    Comment: One respondent stated that the rule should direct the 
contracting officer to ensure that the statement of work does not 
require the contractor to violate host nation or international law. 
This would be consistent with many provisions in DoD Instruction 
3020.41 that the DFARS rule omits.
    DoD Response: The requiring activity and the combatant commander 
have primary responsibility for the statement of work, and they must 
follow the requirements of DoD Instruction 3020.41. Therefore, it is 
unnecessary to repeat this requirement in the DFARS.

12. Preliminary Personnel Requirements (252.225-7040(e))

a. Immunizations
    Comment: One respondent recommended that contractors be required to 
comply with immunization requirements to the ``best of their 
knowledge'' rather than requiring that they be aware of all such 
requirements, since they may not have ready access to all of the 
vaccines, documents, and medical and physical requirements that may be 
applicable to a specific deployment.
    DoD Response: Contractors should be aware of all immunization 
requirements, since the Government is required to provide specific 
information in the contract regarding those requirements.

[[Page 16772]]

b. Foreign Visas
    Comment: One respondent stated that contractors should not have to 
obtain foreign government approval through entrance or exit visas 
before implementing a contract.
    DoD Response: DoD does not have the authority to waive the visa 
requirements of foreign governments. If a contractor is experiencing 
problems obtaining any necessary visas, it should advise the 
contracting officer so that the U.S. Government can assist if possible.
c. Isolated Personnel Training
    Comment: One respondent requested explanation of the phrase 
``isolated personnel training.''
    DoD Response: ``Isolated personnel training'' refers to training 
for military or civilian personnel who may be separated from their unit 
or organization in an environment requiring them to survive, evade, or 
escape while awaiting rescue or recovery. For additional clarity, 
paragraph (e)(1)(vi) of the DFARS clause has been amended to add a 
reference to DoD Instruction 1300.23, Isolated Personnel Training for 
DoD Civilian and Contractors.

13. Personnel Data List (252.225-7040(g))

    Comment: One respondent questioned whether the Privacy Act will 
apply to the implementation of a personnel database.
    DoD Response: The Privacy Act (5 U.S.C. 552a) applies to any system 
of records established by the Government. The final rule designates the 
Synchronized Predeployment and Operational Tracker (SPOT) as the 
applicable system for maintaining data on deployed personnel. The 
Federal Register notice for the SPOT system, as required by the Privacy 
Act, was published at 70 FR 56646 on September 28, 2005.

14. Changes (252.225-7040(p))

a. Expansion of Changes Clause
    Comment: One respondent stated that paragraph (p) of the DFARS 
clause represented an unnecessary sweeping expansion of the standard 
FAR ``Changes'' clause; and that the standard clause is limited for 
important reasons, one of which is to ensure that Government contracts 
remain within clearly defined scopes. Another respondent stated that 
inclusion of change in place of performance in paragraph (p) could be 
interpreted to require a contractor to move from Iraq to Kuwait or from 
East Timor to Lebanon. Although the respondent strongly supported the 
premise that changes are subject to the Changes clause and, therefore, 
subject to equitable adjustment when appropriate, the respondent also 
recommended that an equitable adjustment be explicitly required.
    DoD Response: DoD does not consider paragraph (p) of the DFARS 
clause to be a sweeping change, since it is patterned after the 
standard Changes clause for construction contracts, which includes 
changes in site performance. Because this DFARS clause is not limited 
to construction contracts, the more generic term ``place of 
performance'' was substituted for ``site.'' The Changes clause requires 
that changes be within the scope of the contract and that equitable 
adjustment be provided when appropriate. Since paragraph (p) of the 
DFARS clause states that any change order will be subject to the 
Changes clause, it is not necessary to repeat the principles of the 
Changes clause in the DFARS clause.
b. Interim Rule Preamble
    Comment: One respondent stated that the description of the changes 
to paragraph (p) of the DFARS clause, in the preamble to the interim 
rule published at 71 FR 34826 on June 16, 2006, was not accurate, 
because it only addressed place of performance, when the changes also 
included Government-furnished facilities, equipment, material, and 
services.
    DoD Response: The preamble accurately described the changes made by 
the interim rule published on June 16, 2006. The references to 
Government-furnished facilities, equipment, material, and services were 
already in the clause prior to the interim rule.

15. Subcontract Flowdown (252.225-7040(q))

a. Obligation and Role of the Parties
    Comment: Two respondents recommended that the Government more 
clearly state what parts of the clause are to flowed down and whether, 
for each provision, the contractor is to act in the Government's stead.
    DoD Response: The language in paragraph (q) of the DFARS clause is 
consistent with the language normally included in FAR/DFARS clauses 
requiring flowdown of requirements to subcontractors. The specific 
language ``shall incorporate the substance of this clause'' is intended 
to allow latitude in correctly stating the relationship of the parties. 
The Government does not have privity of contract with subcontractors.
b. Flowdown of Support
    Comment: One respondent, while not objecting to the policy for 
subcontract flowdown, questions the ability of the prime contractor to 
flow down provisions to subcontractors that have the effect of 
committing the Government to undertake affirmative support of each 
subcontractor (including third country national firms) retained to 
provide support.
    DoD Response: The provision for flowdown of the clause to all 
subcontracts where subcontractor personnel are authorized to accompany 
U.S. Armed Forces outside the United States reflects the intent that 
resuscitative care, stabilization, hospitalization at level III 
military treatment facilities, and assistance with patient movement in 
certain emergencies is authorized for such subcontractor personnel. The 
Government has no privity of contract with subcontractors. Therefore, 
all parts of the clause should be flowed down to subcontractors to 
ensure that subcontractors supporting deployed forces receive 
appropriate coverage. With regard to other types of support, the 
contract will specify what support will be provided and to whom.
c. Flowdown to Private Security Contractors
    Comment: One respondent expressed concern that flowing down the 
clause to private security contractors means that a prime contractor 
can authorize a subcontractor to use deadly force.
    DoD Response: Although the prime contractor flows down clause 
requirements, use of deadly force is always subject to the authority of 
the combatant commander, who authorizes the possession of weapons and 
the rules for their use.

16. Defense Base Act

    Comment: One respondent stated that ``self-defense contracts'' and 
private security contracts continue, as a matter of law, to include 
compliance with the Defense Base Act; and that, with the interim rule's 
expansion of the functions to be performed by contractor personnel, it 
becomes unclear that coverage under the Defense Base Act will be 
available to contractors.
    DoD Response: The DFARS rule does not expand functions to be 
performed by contractor personnel. In addition, the courts have 
determined that the Defense Base Act applies to any overseas contract 
that has a nexus to either a national defense activity or a facility 
construction or improvement project. DoD's private security contracts 
fall within Defense Base Act coverage, as they are services to be 
performed outside the United States and relate to national defense 
activities. DoD

[[Page 16773]]

includes the clause at FAR 52.228-3, Workers' Compensation Insurance 
(Defense Base Act), in all service contracts to be performed entirely 
or in part outside the United States and in supply contracts that 
require the performance of employee services overseas. Defense Base Act 
coverage exists as long as contract performance falls within the scope 
of the statutory requirements. This DFARS rule does not change or 
preclude Defense Base Act coverage. If there is concern about the 
unavailability of Defense Base Act coverage because of the high cost of 
insurance or unwillingness of insurance providers when high risk is 
involved, activities such as the Army Corps of Engineers have 
negotiated arrangements with insurance companies to make insurance 
available to contractors. Also, the Government will reimburse insurance 
companies for expenses incurred relating to war hazards, the biggest 
risk.