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28 February 2008
[Federal Register: February 28, 2008 (Volume 73, Number 40)]
[Rules and Regulations]
[Page 10943-10959]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28fe08-17]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 2, 7, 12, 25, and 52
[FAC 2005-24; FAR Case 2005-011; Item I; Docket 2008-0001; Sequence 1]
RIN 9000-AK42
Federal Acquisition Regulation; FAR Case 2005-011, Contractor
Personnel in a Designated Operational Area or Supporting a Diplomatic
or Consular Mission
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) have agreed on a final rule
amending the Federal Acquisition Regulation (FAR) in order to address
the issues of contractor personnel that are providing support to the
mission of the United States Government in a designated operational
area or supporting a diplomatic or consular mission outside the United
States, but are not authorized to accompany the U.S. Armed Forces.
DATES: Effective Date: March 31, 2008.
FOR FURTHER INFORMATION CONTACT: Mr. Ernest Woodson, Procurement
Analyst, at (202) 501-3775 for clarification of content. For
information pertaining to status or publication schedules, contact the
FAR Secretariat at (202) 501-4755. Please cite FAC 2005-24, FAR case
2005-011.
SUPPLEMENTARY INFORMATION:
A. Background
This rule creates a new FAR Subpart 25.3 to address issues relating
to contracts performed outside the United States, including new section
25.301, Contractor personnel in a designated operational area or
supporting a diplomatic or consular mission outside the United States.
The rule also adds a new clause entitled ``Contractor Personnel in a
Designated Operational Area or Supporting a Diplomatic or Consular
Mission Outside the United States.'' This clause will not apply to
contractor personnel authorized to accompany the U.S. Armed Forces
because they are covered by the Defense Federal Acquisition Regulations
Supplement (DFARS) 225.7402 and the clause at 252.225-7040.
DoD, GSA, and NASA published a proposed rule in the Federal
Register at 71 FR 40681, July 18, 2006, under the case title
``Contractor Personnel in a Theater of Operations or at a Diplomatic or
Consular Mission.'' The public comment period ended on September 18,
2006. Because the FAR proposed rule and the DFARS interim rule under
DFARS Case 2005-D013 are similar in many respects, the Councils
reviewed the comments on both rules together, except for those issues
that applied only to the Department of Defense. The Councils received 6
comments on the FAR rule and 10 comments on the DFARS rule.
The most widespread concern of respondents centered on the
paragraph in the clause that sets forth the law of war principles
regarding use of deadly force by contractors. There was strong
objection to the perception that the U.S. Government is now hiring
contractors as mercenaries. These comments on the use of deadly force
have been divided into two categories: The right to self-defense, and
private security contractors.
1. Right to Self-Defense
a. Distinction Between Self-Defense and Combat Operations (Relates to
FAR 52.225-19(B)(3)(I))
Comment: One respondent states that there is an inherently vague
line between what constitutes ``defense'' and ``attack'' which is
plainly crossed when the terms are applied in asymmetric warfare. It is
clear, they say, that contractors employing self-defense measures would
have to undertake a wide array of combat activities to assure their
safety. They refer to these contracts as ``Self Defense Contracts.''
Response: The FAR language recognizes that individuals have an
inherent right to self-defense. The language does not require self-
defense, just authorizes it when necessary. It does not authorize
preemptive measures.
b. Whether the Right of Self-Defense Should Be Modified to ``Personal''
Self-Defense?
Comment: One respondent recommends insertion of the word
``personal'' before ``self-defense'' in the DFARS rule, stating that
this will ``clarify that civilians accompanying the force are
authorized to use deadly force only in defense of themselves, rather
than the broader concept of unit self-defense or preemptive self-
defense.''
Response: The Councils concluded that this is not a problem in the
FAR,
[[Page 10944]]
because the contractors subject to the FAR rule are not authorized to
accompany the force, and ``unit self-defense'' and ``pre-emptive self-
defense'' are not civilian concepts.
c. Whether the Right of Self-Defense Should Be Extended to Defense
Against Common Criminals?
Comment: One respondent states that, ``since this rule will apply
in innumerable asymmetrical environments'', the phrase ``against enemy
armed forces'', should be deleted, asserting that the right of self-
defense should ``extend beyond enemy armed forces since such defensive
actions may be needed as protection against common criminals.''
Response: The Councils concur with this recommendation that the
phrase ``against enemy armed forces'' should be deleted from paragraph
52.225-19(b)(3)(i) of the FAR rule, since there are legitimate
situations which may also require a reasonable exercise of self-defense
against other than enemy armed forces, e.g., defense against common
criminals, terrorists, etc. When facing an attacker, it will often be
impossible for the contractor to tell whether the attacker is
technically an ``enemy armed force'' and probably irrelevant to the
decision whether to use deadly force (although it may not be irrelevant
to the subsequent consequences, which are outside the control of the
contractor and the regulation).
The Councils have also added a reference to the requirements
regarding use of force as specified in paragraph 52.225-19(i)(3) of the
clause, to remind the contractor of the other limitations on the use of
force.
2. Role of Private Security Contractors (52.225-19(B)(3)(Ii))
a. Whether a Separate Category for Private Security Contractors Is
Necessary?
Comment: One respondent states that there is no need for private
security contractor as a separate category if private security
contractors (like other contractors) can only use deadly force in self-
defense.
Response: While the right to self-defense applies to all
contractors, the rule recognizes that private security contractors have
been given a mission to protect other assets/persons and so it is
important that the rule reflect the broader authority of private
security contractors in regard to use of deadly force, consistent with
the terms and conditions of the contract.
b. Hiring Private Security Contractors as Mercenaries Violates
Constitution, Law, Regulations, Policy, and American Core Values
Comment: Many respondents had similar comments to the effect that,
by allowing contractors to assume combat roles, the rule allows
mercenaries in violation of the Constitution and laws of the United
States, core American values, and insulting our soldiers.
One law specifically identified was 5 U.S.C. Sec. 3108,
``Employment of detective agencies; restrictions.'' (The so-called
Anti-Pinkerton Act.)
Also some see this as violating DoD Manpower Mix Criteria
and the Federal Activities Inventory Reform (FAIR) Act of 1998, which
preclude contracting out core inherently governmental functions,
especially combat functions.
Response: While not disputing the many prohibitions against the use
of mercenaries, private security contractors are not mercenaries.
Private security contractors are not part of the armed forces. The
Government does not contract out combat functions. The United States
Government has the authority to hire security guards worldwide. The
protection of property and persons is not an inherently governmental
function (see FAR 7.503(d)(19)).
In Brian X. Scott, Comp. Gen. Dec. B-298370 (Aug. 18, 2006), the
Comptroller General of the United States concluded that solicitations
for security services in and around Iraq violated neither the Anti-
Pinkerton Act, nor DoD policies regarding contractor personnel because
the services required are not ``quasi-military armed forces''
activities. The Comptroller General also relied on the language of the
interim DFARS rule which prohibits contractor personnel from
participating in direct combat activities, as well as the provisions of
DoDI 3020.41, which makes it the responsibility of the combatant
commander to ensure that private security contract mission statements
do not authorize the performance of any inherently Governmental
military function. The Comptroller General concluded that ``* * * the
services sought under the solicitations appear to comport with the DoD
policies and regulations which state that security contractors are not
allowed to conduct direct combat activities or offensive operations.''
c. Whether the Standard for Use of Deadly Force Should Be Modified to
One of ``Reasonableness''
Comment: Paragraph 52.225-19(b)(3)(ii) of the FAR clause uses the
language ``only when necessary'' as the standard when describing the
use of deadly force by security contractors. One respondent notes that
a ``reasonably appears necessary'' standard is used by the Department
of Defense when its personnel perform security functions (see DoDD
5210.56, Use of Deadly Force and the Carrying of Firearms by DoD
Personnel Engaged in Law Enforcement and Security Duties, at
E2.1.2.3.1). The respondent states that ``While everyone would agree
that ``unnecessary'' deadly force is to be avoided, the difference
between ``unnecessary'' and ``only when necessary'' remains wide and
fails to recognize the ``reasonably appears necessary'' standard that
is critical to split-second discretionary decisions, particularly in a
war zone.''
Response: The Councils concur with the suggested revision to the
wording of paragraph 52.225-19(b)(3)(ii). Since this is the standard
applied by the DoD for DoD personnel engaged in law enforcement and
security duties, then it is reasonable to apply that standard to
private security personnel.
d. Whether Protected Assets/Persons for Private Security Contractors
Should Be Limited to Non-Military Objectives
Comment: One respondent says the rule should be clarified to limit
private security contractor personnel to protecting assets/persons that
are non-military objectives. This omission from the Interim Rule seems
to conflict with the Army Field Manual No. 3-100.21, that prohibits the
use of contractors in a force protection role. One respondent is also
concerned about how to craft statements of work for private security
contractors that do not assign to contractors inherently governmental
functions.
Response: It is not possible to tell in advance of an actual
conflict what may become a military objective. Almost anything worth
protecting could become a military target in wartime. As already stated
in paragraph A.2.b. of this notice, the Government is not contracting
out combat functions. The United States Government has the authority to
hire security guards worldwide. The protection of property and persons
is not an inherently Governmental function (see FAR 7.503(d)(19)).
e. Use of the Term ``Mission Statement''
Comments: Paragraph 52.225-19(b)(3)(ii) of the FAR clause
authorizes private security contractor personnel to ``use deadly force
only when necessary to execute their security mission to protect
assets/persons, consistent with the mission statement contained in
their contract.'' Several respondents felt that
[[Page 10945]]
the use of the term ``mission statement'' in that sentence caused
confusion and requested clarification of its meaning. Several
respondents believed that definition of ``mission statement'' is
needed, due to the possibility of different interpretations. Not all
contracts for security services will contain a ``mission statement,''
at least using that terminology. Statements of work may contain
sections entitled ``objectives,'' ``purpose,'' or ``scope of work,''
which may or may not contain the equivalent of a mission statement. The
need to deploy security personnel quickly could ``result in a `mission
statement' (or its equivalent) that may not be as precise as desired
and, therefore, ill-suited to serve as part of a standard for when
deadly force is authorized.''
One respondent was also concerned about the need for clear
provisions establishing who may prepare a mission statement and the
Combatant Commander's role in the process. The respondent further noted
that the ``Background'' section of the FAR rule contained the following
supplemental information concerning the Combatant Commander's role:
``It is the responsibility of the Combatant Commander to ensure that
private security contract mission statements do not authorize the
performance of any inherently governmental military functions, such as
preemptive attacks, or any other types of attacks.'' However, the
respondent stressed that, with civilian agencies that have ``non-DoD''
contracts, ``the Combatant Commander will have no involvement and the
rule does not provide any mechanism for the non-defense agencies to
obtain that determination.''
Respondents also requested clarification whether or not
subcontractors would be considered private security contractors, or
whether that the term ``private security contractor'' was limited to
contractors that have ``a contract directly with the Government''. One
respondent commented that ``there is no guidance as to who would
qualify as ``private security contractor personnel'', creating
uncertainty regarding whether private security companies retained by a
prime contractor would be covered if the prime contractor drafted a
mission statement for its private security subcontractor.''
Response: The Councils agree that the use of the phrase
``consistent with the mission statement contained in their contract'',
in paragraph 52.225-19(b)(3)(ii) of the FAR clause might cause some
confusion. The Councils have replaced this phrase with ``consistent
with the terms and conditions of the contract.'' ``Terms and
conditions'' covers possible placement anywhere in the contract.
For contractors supporting a diplomatic or consular mission, it
will be the chief of mission who authorizes the use of weapons. When
authorizing the use of weapons, the chief of mission will review and
approve the use to which the weapons will be put.
The Councils do not consider that any clarification with regard to
subcontractors is necessary. When a clause flows down to
subcontractors, the terms are changed appropriately to reflect the
relationship of the parties. There is nothing in the proposed rule that
indicates that private security contractors cannot be subcontractors.
f. Authority of Combatant Commander/Chief of Mission to ``Create
Missions''
Comment: One respondent asserts that the proposed FAR rule
delegates extensive authority to combatant commanders to direct
contractor actions under both support and security contracts. They
contend that granting such ``nearly unlimited'' authority to combatant
commanders to ``create missions'' is inconsistent with laws and
regulations which convey such authority to contracting officers and
serves to undermine their authority.
Response: The combatant commander/chief of mission are not
authorized to ``create missions'' for private security contractors. The
contractors must perform in accordance with the terms and conditions of
the contract. The authority of the combatant commander/chief of mission
arises through the fact that they must approve when any contractors
request authority to carry weapons, and the combatant commander/chief
of mission must evaluate whether the planned use of such weapons is
appropriate.
g. Approval of Private Security Contractors
Comment: One respondent questioned whether there will be a vetting
process and list of approved Private Security Contractors for
contractors or their subcontractors to acquire services from? They also
wanted to know about any requirements/rules when a contractor
subcontracts with a local or third-country firm as private security
contractor.
Response: With regard to vetting for private security contractors,
FAR 25.301-2 provides that contractors are responsible for providing
their own security support. Additionally, 52.225-19(c) echoes 25.301-2
and 52.225-19(e)(2) requires the contractor to insure that all
applicable specified security and backgrounds checks are completed
before contractor personnel begin performance in the designated
operational area or with a diplomatic or consular mission.
The Contractor assumes full responsibility for the selection and
performance of its subcontractors. However, the Government may reserve
the right to approve subcontracts.
h. Definition of ``Private Security Contractor''
Comment: Several respondents requested a definition of Private
Security Contractor.
Response: The Councils considered that a private security
contractor is a contractor that has been hired to provide security,
either by the Government, or as a subcontractor. In some circumstances
a contractor, whose primary function is not security, will directly
hire a few personnel to provide security, rather than subcontracting to
a private security contractor. The authority for use of deadly force
ultimately rests with the individuals who are providing the security,
whether as direct hires or as employees of a subcontractor. Therefore,
the Councils have revised the language in paragraph 52.225-19(b)(3)(ii)
of the clause from ``Private security contractors * * *'' to read
``Contractor personnel performing security functions * * *''
3. Consequences of Inappropriate Use of Force (52.225-19(b)(3)(iii))
a. Loss of ``Law of War'' Protection From Direct Attack
Comment: Paragraph (b)(3)(iii) in the proposed rule stated that
``Civilians lose their law of war protection from direct attack if and
for such time as they take a direct part in the hostilities.'' This
statement raised many questions as to what the terms mean. One
respondent considered this to be a correct statement under the
international law of war, but that it may call into questions our
foundation for the Global War on Terrorism and targeting ``unlawful
combatants'' when they are not taking a direct part in hostilities.
Response: The Councils decided to delete this paragraph. Paragraph
(b)(3)(i) sets forth the right to self-defense. Paragraph (b)(3)(ii)
sets forth a limited right for some contractor personnel to protect
assets/persons. Adding paragraph (b)(3)(iii) does not provide any
useful information to contractors on what they are authorized to do.
Discussion of the theories of law of war should be handled in law of
war
[[Page 10946]]
training prior to deployment rather than in the clause.
b. Consequences Other Than ``Law of War'' Consequences
Comment: Several respondents state that as the interim DFARS rule
is currently drafted, the notice to contractors relating to the
personal and legal impact of directly participating in hostilities is
incomplete. They requested inclusion of language from the DoDI 3020.41
relating to possible criminal and civil liability for inappropriate use
of force.
Response: Although the comment specifically related to the DFARS
rule, and inclusion of the language from the DoDI is not appropriate,
the Councils have added to paragraph 52.225-19(b)(3)(i) of the clause a
cautionary reference to paragraph 52.225-19(i)(3) of the clause,
regarding use of weapons.
4. Contractors Are Not Active Duty (52.225-19(b)(4))
Comment: One respondent was concerned about paragraph (b)(4) in the
clause. This paragraph says, ``Service performed by contractor
personnel subject to this clause is not active duty or service under 38
U.S.C. 106 Note.'' The respondent points out that the Note under
Section 106 in Title 38 of the annotated U.S. Code explains that the
Secretary of Defense is to determine what constitutes ``active duty or
service'' under this statute for Women's Air Forces Service Pilots who
were attached to the Army Air Corps during World War II and persons in
similarly situated groups who rendered services in a capacity
considered civilian employment or contractual service. The respondent
asserts the determination can only be made retrospectively.
Response: The clause correctly states the terms of service for
Defense and non-Defense contractors. Contractors should hold no
expectation under this clause that their service will qualify as
``active duty or service.'' The Note under 38 U.S.C. 106 requires
determinations for any applicant group be based on (1) regulations
prescribed by the Secretary, and (2) a full review of the historical
records and any other evidence pertaining to the service of any such
group. In promulgating the DFARS, the Department of Defense issued a
regulation prescribed by the Secretary. This Defense regulation
establishes the historical record that shall be used in future review
of the historical evidence surrounding a contractor's service under
this clause. Defense policy is that contractors operating under this
clause shall not be attached to the armed forces in a way similar to
the Women's Air Forces Service Pilots of World War II. Contractors
today are not being called upon to obligate themselves in the service
of the country in the same way as the Women's Air Forces Service Pilots
or any of the other groups listed in Section 106. The FAR follows the
Defense regulation in this regard, since ``active duty or service'' is
a matter uniquely determined by the Secretary of Defense.
5. Weapons (25.301-3 and 52.225-19(i))
a. Nature of the Authorized Weapons
Comment: One respondent claims there is no reasonable limitation on
the nature of the ``weapons'' that a contractor is to handle, whether
as a ``Self Defense Contractor'' or a Private Security Contractor. The
range could include anything from small arms to major weapons systems.
Response: There are too many different situations for individual
agencies to be able to prescribe specific weapons for each
circumstance. However, it is unlikely a contractor would attempt to
bring a major weapon system on the battlefield, or that the combatant
commander/chief of mission would approve/authorize such weapons.
b. Combatant Commander/Chief of Mission--Rules on the Use of Force
Comment: One respondent believes there is no reasonable means by
which a combatant commander/chief of mission can generate rules
regarding the use of force by contractors. They further claim that the
rules have to be related to doctrine, dogma, rules of engagement, etc.
and these are formulated well above the combatant commander. Since the
rules may be different, they assert contractor personnel would be
subject to a range of serious risks and liabilities.
Response: It is the authority of a combatant commander to perform
those functions of command over assigned forces involving: Organizing
and employing commands and forces; assigning tasks; designating
objectives; and giving authoritative direction over all aspects of
military operations, joint training, and logistics necessary to
accomplish the missions assigned. Operational control is inherent in
combatant command (command authority) and therefore, provides full
authority to organize and employ commands and forces as the combatant
commander considers necessary to accomplish assigned missions. The
combatant commander also establishes rules of engagement in the
designated operational area, and does take into consideration many
influences such as doctrine. The combatant commander will also seek
advice from experts in areas such as legal and security, prior to
making such decisions. Since the rules regarding contractor
authorization to carry firearms will vary according to the phase of the
conflict, there would be no person other than the combatant commander
more informed or able to make the decision on whether a contractor can
carry weapons and the rules for use of such weapons.
It is the authority of the chief of mission to establish the rules
for use of weapons by contractors supporting a diplomatic or consular
mission.
c. Law of Armed Conflict (LOAC) Issues
Comment: One respondent states the notion that the Government
assumes no responsibility whatsoever for the use of weapons on a
battlefield by a contractor authorized and required to use such weapons
as the practical effect of the contract requirements, makes no sense
and is certain to cause contractual Law of Armed Conflict issues and
other problems.
Response: There have been no issues on the Law of Armed Conflict
for contractors carrying weapons because in the current conflicts there
are no enemy armed forces that are lawful combatants and no enemy
government to provide them prisoner of war status and protections if
captured.
The Councils also note that at the beginning of the current
conflicts contractors were not allowed to carry weapons at all. During
the post-major operations phase, civilian contractors that have been
brought in for a variety of security operations are authorized (and
required) to provide their own weapons. The obvious safety/security
connected with carrying a weapon far outweigh any theoretical issues.
d. Liability for Use of Weapons
Comment: Several respondents express concern that the Government
(52.225-19(i)) authorizes (and sometimes requires) contractor personnel
to carry weapons but that it places sole liability for the use of
weapons on contractors and contractor personnel, ``even if the
contractor was acting in strict accordance with the contract statement
of work or under specific instructions from the contracting officer,
the Chief of Mission, or the Combatant Commander.''
One respondent considers this statement regarding contractor
liability for use of weapons to be inconsistent with prior regulatory
history, citing the statement that ``the risk associated with
inherently Governmental functions will
[[Page 10947]]
remain with the Government.'' (70 FR 23792, May 5, 2005.)
Response: While a contractor may be authorized to carry and use
weapons, the contractor remains responsible for the performance and
conduct of its personnel. A contractor has discretion in seeking
authority for any of its employees to carry and use a weapon. Each
contractor is responsible for ensuring its personnel who are authorized
to carry weapons are adequately trained to carry and use them safely,
adhere to the rules on the use of force, comply with law, agreements,
and are not barred from possession of a firearm. Inappropriate use of
force could subject a contractor, its subcontractor, or employees to
prosecution or civil liability under the laws of the United States and
the host nation. The Government cannot indemnify a contractor and its
personnel against claims for damages or injury or grant immunity from
prosecution associated with the use of weapons.
With regard to the statement regarding inherently governmental
functions, this rule does not authorize contractors to carry out any
inherently governmental functions.
6. Risk/Liability to Third Parties/Indemnification (52.225-19(b)(2))
Comment: Many respondents expressed concern that the proposed FAR
rule shifts to contractors all risks associated with performing the
contract and may lead courts to deny contractors certain defenses in
tort litigation. The respondents cited decisions by state and federal
courts arising out of injuries or deaths to third parties, including
military members and civilians. Generally, the courts absolved
contractors of liability to third parties where the Government carried
ultimate responsibility for the operation.
Some respondents are concerned that the acceptance of risk may
preclude grants of indemnification and that the rule could adversely
affect indemnification that would otherwise be available. FAR clause
52.228-7 provides limited indemnification, but provides that
contractors shall not be reimbursed for liabilities for which the
contractor is otherwise responsible under the express terms of any
clause specified in the Schedule or elsewhere in the contract.
One respondent states that the provisions stating that the
contractor accepts certain risks and liabilities could also be the
basis to deny pre- or post-award request for indemnification under
Public Law 85-804. One respondent also cited a decision by a Defense
Department Contract Appeals Board in which the Board declined a
contractor's request for indemnification under Public Law 85-804
because, according to the Board, contractors should not be able to
``deliberately enter into contractual arrangements with full knowledge
that a risk is involved'' and yet propose unrealistically low prices on
the hopes they may later gain indemnification. Therefore, the rule
could adversely affect indemnification that would otherwise be
available.
The respondents recommend that the United States should either
identify, quantify, and accept all the risk or should insert language
that would immunize contractors from tort liability. Specifically,
several respondents recommend adding a sentence saying,
``Notwithstanding any other clause in this contract, nothing in this
clause should be interpreted to affect any defense or immunity that may
be available to the contractor in connection with third-party claims,
or to enlarge or diminish any indemnification a contractor may have
under this contract or as may be available under the law.''
There was also concern that by accepting all risks of performance,
contractors would not be able to obtain workers compensation insurance
or reimbursement under the Defense Base Act.
One respondent suggests that the final rule should be revised to
modify the contractor's acceptance of risk as follows: ``Except as
otherwise provided in the contract, the Contractor accepts the risks
associated with required contract performance in such operations.''
Response: The Councils believe the rule adequately allocates risks,
allows for equitable adjustments, and permits contractors to defend
against potential third party claims. Contractors are in the best
position to plan and perform their duties in ways that avoid injuring
third parties. Contractors are equally or more responsible to research
host nation laws and proposed operating environments and to negotiate
and price the terms of each contract effectively. Accordingly, the
clause retains the current rule of law holding contractors accountable
for the negligent or willful actions of their employees, officers and
subcontractors. This is consistent with existing laws and rules,
including FAR clause 52.228-7, Insurance-Liability to Third Parties,
and FAR Part 50, Extraordinary Contractual Actions (Indemnification),
as well as the court and board decisions cited in the comments.
The current law regarding the Government Contractor Defense (e.g.,
the line of cases following Boyle v. United Technologies, 487 U.S. 500,
108 S. Ct. 2510 (1988)) extends to manufacturers immunity when the
Government prepares or approves relatively precise design or production
specifications after making sovereign decisions balancing known risks
against Government budgets and other factors in control of the
Government. This rule covers service contracts, not manufacturing, and
it makes no changes to existing rules regarding liability. The public
policy rationale behind Boyle does not apply when a performance-based
statement of work is used in a services contract because the Government
does not, in fact, exercise specific control over the actions and
decisions of the contractor, its employees or subcontractors. Asking a
contractor to ensure its employees comply with host nation law and
other authorities does not amount to the precise control that would be
requisite to shift away from a contractor accountability for its own
actions.
Contractors will still be able to defend themselves when injuries
to third parties are caused by the actions or decisions of the
Government, its officers and employees. To the extent that contractors
are currently seeking to avoid accountability to third parties for
their own actions by raising defenses based on the sovereignty of the
United States, this clause should not send a signal that would invite
courts to shift the risk of loss to innocent injured parties. The
recommended language would open the door to attempts to shift to
innocent victims all the burden of their injuries and would encourage
contractors to avoid proper precautions needed to prevent injury to
others. The language in the clause is intended to encourage contractors
to properly assess the risks involved and take proper precautions.
However, to preclude the misunderstanding that asking the
contractor to ``accept all risks'' is an attempt to ``shift to the
contractor all risk of performance without regard to specific
provisions in the contract,'' the Councils have accepted the suggestion
to modify the requirement with the lead-in phrase: ``Except as
otherwise provided in the contract,''.
7. Terms Defined (2.1 and 52.225-19(a))
a. Theater of Operations
Comment: One respondent states that the term ``theater of
operations'' is unwarranted by any legitimate purposes suggested by the
interim rule.'' This is a term which if defined at all, should rest in
the hands of the President or the Secretary of Defense.''
[[Page 10948]]
Response: There was a legitimate purpose for the use of this term
because it defined the geographic area in which the clause was
applicable. The combatant commander has the authority to define a
``theater of operations'' within the geographic area for which the
combatant commander is responsible. However, after discussion with
military experts and review of the Joint Publication 3-0 Chapter 5, the
Councils have determined that the term ``theater of operations'' is too
restrictive, that the appropriate term is ``designated operational
area,'' which includes theater of operations, but also would include
such descriptors as theater of war, joint operations area, amphibious
objective area, joint special operations area, and area of operations.
The Councils have added a definition of ``designated operational area''
at FAR Part 2 and in the clause, and replaced the term ``theater of
operations'' throughout the text and clause.
b. Contingency Operations and Humanitarian or Peacekeeping Operations
Comment: One respondent is concerned that the rule defines the
terms ``contingency operation'' and ``humanitarian or peacekeeping
operation'' in military terms and does not address the civilian
``humanitarian, contingency, disaster assistance, and developmental
assistance'' authorities that govern the United States Agency for
International Development (USAID) and other civilian agency
international programs.
Response: The definitions of ``contingency operations'' and
``humanitarian or peacekeeping operations'' are defined in military
terms, as defined at 10 U.S.C. 101(a)(13) and 10 U.S.C. 2302(8) and 41
U.S.C. 259(d), because the purpose of this rule and clause as set forth
in the scope at 25.301-1(a) is intended to be applied during military
operations. To make it more clear that the rule is not referring to the
type of contingency, humanitarian, or peacekeeping operations in which
USAID is involved, the term ``military'' has been included in the
definition of ``designated operational area.''
c. Other Military Operations
Comment: Several respondents note that the term ``other military
operations'' is very broadly defined. One respondent states that it is
``either over expansive, or unnecessary, because it is so inclusive as
to suggest nearly any type of military engagement likely to be carried
out in the first half of the current century.''
Response: The Councils concur that this definition was very broad,
because it was intended to cover every type of military operation.
However, the Councils have deleted this definition, because the
Councils have agreed to limit application of this rule and clause to
``other military operations'' only when so designated by the Combatant
Commander. Since the clause will only be applied to other military
operations when designated by the Combatant Commander, it is
unnecessary to define the term in the text and clause.
d. At a Diplomatic or Consular Mission
Comment: One respondent states that the term ``at a diplomatic or
consular mission'' connotes the physical location of the embassy or
consulate, which seems more limited than the FAR definition
contemplates. A more descriptive phrase for the geographical location
where the FAR clause should apply would be helpful. One respondent also
objects to the statutory reference in the definition.
Response: The Councils have changed the final rule to make the
wording clearer, with less emphasis on location and more emphasis on
the performance under the contract. The Councils have also deleted the
statutory reference. Contracting officers know when they are subject to
the direction of a Chief of Mission.
e. Chief of Mission
Comment: One respondent does not object to the definition of
``Chief of Mission.'' However, the respondent requests a reasonable and
consistent means for identifying the individual who occupies the
position. Another respondent requests that the contract clause should
include a blank to be completed to identify the chief of mission. This
respondent also requests explanation of the distinction between an
ambassador at an embassy and a chief of mission at a diplomatic or
consular mission.
Response: The Chief of Mission can be identified through the
Department of State. The Councils do not consider it advisable to put
that information in the contract because it changes frequently.
Although the ambassador may be the chief of mission, many diplomatic
missions do not have an ambassador. As stated in the definition, the
Chief of Mission is whoever is in charge of a diplomatic mission, as
designated by the Secretary of State.
f. Location of Definitions
Comment: One respondent stated that all of the definitions should
be included in either FAR 2.101 or 25.302-2 and in the clause, or
provided only in the clause. ``At a diplomatic or consular mission''
and ``theater of operations'' are defined in the clause but not at
25.302 (now 25.301).
Response: In the proposed rule, ``at a diplomatic or consular
mission'' and ``theater of operations'' are defined in FAR 2.101 rather
than at 25.301, because the terms are used in more than one part of the
FAR. In the final rule, the definition of ``designated operational
area'' has been substituted for the definition of ``theater of
operations'' and the definition of ``supporting a diplomatic or
consular mission'' has replaced the definition of ``at a diplomatic or
consular mission''. In addition, the definitions of ``chief of
missions'' and ``combatant commander'' have also been moved to Part 2,
because those terms are used in the definitions of ``designated
operational area'' and ``supporting a diplomatic or consular mission,''
respectively.
8. Terms Not Defined
a. Enemy Armed Forces
Comment: One respondent objects to the lack of definition of the
term ``enemy armed forces,'' stating that this term is critical to the
contractor in determining and pricing its obligations under a
solicitation or resulting contract.
Response: The FAR rule has been revised to delete use of the term
``enemy armed forces.''
b. ``Law of War,'' ``Law of War Protections,'' and ``Take Direct Part
in Hostilities''
Comment: One respondent states that there are several terms of art
that are undefined in the FAR rule that likely cannot be defined
satisfactorily in the FAR. The respondent states that understanding the
concepts underlying these terms is crucial to preparing statements of
work for and administering contracts that will send contractor
employees into hostile environments. Therefore, the FAR text should
include some discussion of them and the need for contracting personnel
to seek advice when dealing with these terms. Such terms include ``law
of war,'' ``law of war protections,'' and ``take a direct part in
hostilities;'' the latter is perhaps the most important phrase for
private security contractors and those drafting the statements of work
or mission statements. The difficulty of understanding the concept
``take a direct part in hostilities'' is illustrated by the fact that
the International Team of the Red Cross has held three conferences for
the purpose of defining
[[Page 10949]]
this term without consensus and that the DoDI 3020.41 provides explicit
instructions about the need for legal counsel's advice to sufficiently
address the many aspects of direct participation in hostilities.
Response: It is beyond the scope of the FAR rule to include
definitions of ``law of war,'' ``law of war protections,'' and ``take
direct part in hostilities.'' The respondent acknowledged that the
terms cannot be satisfactorily defined in the FAR. These terms have
been removed from the final FAR rule. The Department of Defense is
developing ``law of war'' training that will be available to contractor
personnel.
c. ``Security Support,'' ``Security Mission,'' ``Mandatory
Evacuation,'' and ``Non-Mandatory Evacuation''
Comment: One respondent states that the DoD interim rule uses these
terms that are not defined. These terms are also used in the FAR rule.
The respondent considers that these terms are critical to the
contractor in determining and pricing its obligations under a
solicitation and resulting contract.
Response: Aside from the fact that the terms ``security support''
and ``security mission'' are used in their plain English meaning,
whatever the contractor needs to know about them is set forth in the
solicitation and contract. The terms and conditions of the contract
define the mission and also specify if any security support will be
provided.
Since the Government will not provide security support except as
specified in the contract, the abstract meaning of the term ``security
support'' is irrelevant in determining and pricing the contractor's
obligations under the contract. With regard to mandatory evacuation and
non-mandatory evacuation, it is unnecessary to define these terms in
the clause. Aside from the plain English meaning of the terms, an
evacuation order will be identified as mandatory or non-mandatory. The
contractor will be told what it needs to know in the case such an order
is issued.
d. ``Contractor''
Comment: One respondent proposes that ``contractor'' needs to be
defined in the FAR rule. The respondent states that the current
definition ``contractor personnel are civilians'' does not address the
broad range of implementing partners and types of contractors used by
the foreign assistance community.
Response: The Councils consider that regardless of the type of
contractors used by the foreign assistance community they are still
civilians. Therefore, it does not enhance the clarity of this rule to
attempt such a definition. If an individual agency finds a need for
such a definition to address their particular circumstances, it can be
included in their individual agency FAR supplements.
Further, the FAR only applies to contracts as defined in FAR Part
2, not to the entire broad range of partners, ventures, and other types
of contractors that may be used by the foreign assistance community.
e. Definitions Reflecting Civilian Agency Authorities for Disaster,
Humanitarian, Transitions, and Development Assistance
Comment: One respondent states that while the current and proposed
definitions are suitable to military operations, the section requires
additional definitions reflecting civilian agency authorities for
disaster, humanitarian, transitions, and development assistance as set
out in Foreign Assistance legislation and in implementing regulations.
Response: The Councils did not define these terms, such as
``disaster,'' ``humanitarian,'' ``transitions,'' etc., since the focus
of the rule is on the status of contractor personnel in a designated
operational area or supporting a diplomatic or consular mission.
Therefore, it is more appropriate to address the particulars of
civilian agency authority for disaster and humanitarian efforts in the
individual agency FAR supplements.
f. Area of Performance
Comment: One respondent states that the term ``area of
performance'' in the FAR rule is not defined; without a definition, an
area of performance could mean anywhere a contractor performs--both
overseas and in the U.S.--creating ambiguity. When used in the proposed
FAR rule, it would appear that ``area of performance'' can be deleted
or the term ``theater of operations or diplomatic or consular mission''
can be substituted if done with care.
Response: The term ``area of performance'' has a broad meaning
within the proposed FAR rule, which is discernable from the plain
English meaning of the terms. The term ``area of performance'' is used
in the FAR rule to avoid unnecessarily cumbersome repetition of the
phrases ``designated operational area'' and ``supporting a diplomatic
or consular mission'' and to be more specific in such cases when the
``designated operational area'' or ``supporting a diplomatic or
consular mission'' might encompass a broader area within which the laws
and regulations might vary from place to place. However, in paragraph
52.225-19(d), Compliance with laws and regulations, the term ``area of
performance'' was considered duplicative and has been removed.
The uses of the term ``area of performance'' in paragraphs 52.225-
19(f), (j), and (o) of the clause are not ambiguous. First, the title
of the clause itself and paragraph 52.225-19(b) define the
applicability of the clause to contractor personnel employed outside
the United States in a designated operational area or supporting a
diplomatic or consular mission. The usage in paragraphs 52.225-19(d)
and (f) reiterates the restriction of the meaning to an area within the
designated operational area or supporting a diplomatic or consular
mission. The statement on paragraph 52.225-19(j) would be true wherever
performance occurs, and the usage in paragraph 52.225-19(o) with regard
to who is responsible for mortuary affairs upon death of a contractor
in the area of performance is unambiguously not referring to death in
the United States.
9. Consistent Terminology
a. Performance Outside the United States
Comment: One respondent states that the prescription at
25.000(a)(2) provides that Part 25 applies to ``performance of
contractor personnel outside the United States.'' The scope of the
proposed prescription at 25.302-1 (now 25.301-1) applies to ``contracts
requiring contractor personnel to perform outside the United States.''
By contrast, 25.302-5 (now 25.301-4) directs contracting officers to
insert the clause ``when contract performance requires that contractor
personnel be available to perform outside the United States'' while the
clause at 52.225-19(b) directs that the clause applies ``when
contractor personnel are employed outside the United States.'' The
respondent considers that these four provisions must be uniform and
consistent. The respondent recommends that all four provisions be
revised to state that they apply only when ``contractor personnel are
to be deployed outside the United States to perform a covered
contract.''
Response: The Councils concur that the language of the proposed
rule could be more consistent. However, the language for the scope of
the Part and title of the Subpart is supposed to be broader than the
specific language in the text and clause.
The Councils have changed the language in FAR 25.000,
Scope of the
[[Page 10950]]
part to ``Contracts performed outside the United States.'' The term
``acquiring'' at 25.000(a)(1) was also changed to ``acquisition'' for
parallel construction.
The title of FAR subpart 25.3 has been revised to read
``Contracts Performed Outside the United States.''
The clause prescription and paragraph 52.225-19(b) of the
clause have been modified to more closely conform to 25.301-1(a)
(renumbered):
Sec. 25.301-1(a)--``This section applies to contracts requiring
contractor personnel to perform outside the United States * * *''.
Sec. 25.301-4--``Insert the clause * * * in solicitations and
contracts that will require contractor personnel to perform outside the
United States * * *''.
Sec. 52.225-19(b)--``This clause applies when contractor personnel
are required to perform outside the United States.''
b. When Designated by the Chief of Mission
Comment: One respondent also notes that the prescription at 25.302-
1(b) (now 25.301-1(b)) states it applies ``when designated'' by the
Chief of the Mission while the clause at 52.225-19(b)(1)(ii) states
that it applies ``when specified'' by the Chief of Mission. While not
significant differences, the respondent believes the two applications
should be identical.
Response: This issue is now moot, because the language in question
has been replaced by different criteria for applicability of the clause
when used for performance with a diplomatic or consular mission.
10. Scope of Application
a. Commercial Items
Comment: One respondent is concerned that the proposed language at
FAR 12.301 requires application of the new clause across-the-board to
commercial items. This respondent recommends that the clause should
only apply if the acquisition of commercial items is for performance of
contractor personnel outside the United States in a covered theater of
operations.
Response: The Councils concur that the clause should only apply if
the acquisition of commercial items is for performance of contractor
personnel outside the United States in a designated operational area or
supporting a diplomatic or consular mission. However, the respondent
has misinterpreted the requirement at FAR 12.301. FAR 12.301 states
that the clause at 52.225-19, Contractor Personnel in a Designated
Operational Area or Supporting a Diplomatic or Consular Mission Outside
the United States, is to be inserted as prescribed at 25.302-4. That
takes the contracting officer back to the clause prescription that
applies the specific limitations on use of the clause. No change to the
proposed rule is required.
b. Military Operations and Exercises
Comment: One respondent is concerned about the application of this
rule to a wide range of military operations and exercises that do not
require special treatment. The proposed rule prescribes use of the
clause when contractor personnel will be required to perform outside
the United States in a theater of operations during ``other military
operations,'' or military exercises designated by the combatant
commander. One respondent recommends that the final FAR rule should
include criteria for when the combatant commander should invoke the
authority to require use of the clause.
Response: The Councils agree that ``designated by the Combatant
Commander'' should apply to ``other military operations'' as well as
military exercises. Other military operations is so broadly defined
that it does include situations in which use of the clause would
probably be unnecessary. The Councils do not consider it appropriate
for the acquisition regulations to prescribe to the combatant
commanders the criteria for designating the required use of the clause.
The combatant commanders are in the best position to determine whether
the circumstances in a particular designated operational area warrant
its use. The Councils also added clarification that any of the types of
military operations included in the scope of this rule may include
stability operations.
c. Paragraph 25.301-1(a) of the Scope Applies to Military Operations
Comment: One respondent wants it made clear that 25.302-1(a) (now
25.301-1(a)) only applies to military operations.
Response: The Councils resolved this concern by replacing the term
``theater of operations'' with the term ``designated operational
area,'' which includes the term ``military'' in the definition.
d. Relation to the DFARS Rule
Comment: One respondent recommends modifying the scope of the FAR
rule to state that it covers contractor personnel not covered by the
DFARS clause. The regulation should also address task and delivery
orders when the umbrella contract might be issued by a civilian agency,
e.g., GSA, but the task order is issued by a DoD agency authorizing
personnel to ``accompany the force.''
Response: These are issues that must be addressed by DoD, not the
FAR. The FAR generally only includes regulations that affect more than
one agency, and leaves it to individual agencies to address their
unique issues in agency supplements.
e. Applicability to Contractors Supporting a Diplomatic or Consular
Mission
Comment: One respondent was concerned about the meaning of ``when
designated by the chief of mission.'' Further, a respondent objected
that no criteria were provided for this exercise of discretion by the
chief of mission.
Another respondent also considered it unclear how the fact that
``the contract is administered by federal agency personnel subject to
the direction of a chief of mission'' signifies that the conditions in
that location may require the use of the proposed FAR clause.
Response: The Councils do not agree that the meaning of ``when
designated by a chief of mission'' is unclear. However, the Councils
have agreed that the clause should be used for contracts supporting a
diplomatic or consular mission that has been designated by the
Secretary of State as a danger pay post (see http://aoprals.state.gov/
Web920/danger--pay--all.asp), or at the discretion of the contracting
officer.
With regard to the respondent's concern about the significance of
whether a contract is administered by Federal agency personnel subject
to the direction of a chief of mission, that has to do with whether the
contract to be performed is supporting a diplomatic or consular
mission, not with the decision as to whether the clause is applicable.
f. Designation of Specific Geographic Area
Comment: One respondent questions whether the combatant commander
or chief of mission should designate a specific geographic area for
applicability of the clause.
Response: The Councils agree that the changes to the scope of the
FAR clause sufficiently define the area of applicability. An area
designated by the Secretary of State as a danger pay post is quite
specific, and the designated operational area is also a specific
geographic area, defined by the combatant commander or the subordinate
joint force commander for the conduct or support of specified military
operations.
[[Page 10951]]
g. Applicability to Personal Service Contractors
Comment: One Government respondent comments that some civilian
agencies have the authority to hire personal services contractors to
assist with programs outside the United States. These workers are
considered to be part of the workforce. They request that the final FAR
rule should not apply to personal services contractors.
Response: The Councils have agreed to modify the scope at 25.301-
1(c) to exclude personal services contractors, unless otherwise
provided in agency procedures. A similar exclusion has been added to
the clause prescription at 25.301-4.
h. Outside the Authority of the Chief of Mission
Comment: One respondent requests that the FAR rule should clarify
when the FAR clause is to be included if the contract is otherwise
outside the authority of the chief of mission. The respondent states
that many USAID and other agency contracts state that the contractors
performing these contracts are ``outside of the authority'' of the
chief of mission. In Afghanistan today, contractors ``under the
authority of the chief of mission'' are required to live in the Embassy
compound and are prohibited from traveling within the country.
Response: Contractors are not under the authority of the Chief of
Mission except as provided by the contract. The fact that currently in
Afghanistan contractors under the authority of the Chief of Mission may
be required to live in the embassy compound is particular to the
immediate circumstances in that country. In most cases, contractors
under the authority of the chief of mission are not required to live in
the embassy and are not prohibited from travel in the country.
11. Logistical and Security Support (25.301-2 and 52.225-19(c))
a. Lack of Force Protection Represents Change in Policy
Comment: Several respondents consider that shifting the
responsibility for force protection to the contractor when a hostile
force is operating in the area is a major policy change that the FAR
rule does not explain. The respondents claim that security for
contractor personnel supporting U.S. missions in an area wrought with
conflict with armed enemy forces should normally be a DoD
responsibility. One respondent considers that this is the ``penultimate
paragraph'' in the transfer of responsibility for force protection from
the military to contractors, and that it is ill-considered. Another
respondent contends that, in locations ``where the military controls
the theater of operations,'' the combatant commander should always have
a security plan that covers contractors on the battlefield, whether
those contractors accompany the U.S. Armed Forces or not.
Response: In most areas of the world, it is the responsibility of
the host nation to provide protection for civilians working in their
country. Even for contractors authorized to accompany the force, the
responsibility for force protection resides with the contractor unless
otherwise specified in the contract (DoD Joint Publication 4-0, Chapter
V). The writers of the regulations cannot commit the U.S. Armed Forces
to provide protection to contractor personnel performing in areas of
conflict, particularly those contractors not accompanying the U.S.
Armed Forces, because there is no authorization to do so.
b. Timing of Disclosure
Comment: While one respondent acknowledges that most contractors
who do not accompany the U.S. Forces understand that they are primarily
responsible for their own logistics and security, the respondent notes
that timing of the disclosure of agency support could impact an
offeror's proposal costs, and recommends that, at a minimum, agencies
be required to include support information, not just in the contract,
but also in the solicitation. Another respondent also requests that the
final rule should clarify whether a security plan, if any, will be
developed prior to the release of the solicitation.
Response: The Councils agree with respondents' comment that the
timing of the disclosure of agency's decision to provide or not provide
support could have an impact on the offerors' proposal/bid costs. In
order to enhance the reasonableness and accuracy of bid and proposal
costs, it is in the Government's interest to provide support
information available at the time of solicitation. The Councils have
revised the text at 25.301-2(b) to require the contracting officer to
specify in the solicitation, if possible, the exact support to be
provided.
c. Changes in Government-Provided Support
Comment: One respondent comments that any changes to Government-
provided security support should expressly require an equitable
adjustment to the contract.
Response: The Councils do not concur with the respondent's
statement that changes to Government-provided security should expressly
require an equitable adjustment to the contract. The need for equitable
adjustments will be evaluated in accordance with existing FAR changes
clauses.
d. Agency Cannot Know if Adequate Support Is Available
Comment: One respondent comments that one of the conditions
precedent to Government support is a determination by the Government
that ``adequate support cannot be obtained by the contractor from other
sources.'' The respondent asserts that whether or not competitors can
obtain adequate support from other sources ``is outside of an agency's
knowledge,'' further noting that this kind of knowledge involved
``marketplace issues that vary significantly by the size and experience
of the contractor.''
Response: The Councils do not concur with the assertion that the
Government would not be able to determine whether the contractor was
able to obtain adequate support from other sources. The Government
official would not be making decisions in a vacuum, but would perform
necessary market research and consult with the contractor as necessary.
In addition, the Councils also added that the agency shall provide
logistical or security support only when the appropriate agency
official, in accordance with agency guidance, determines that such
Government support is available and is needed.
e. Reasonable Cost
Comment: One respondent states that there is a difference between
the FAR and DFARS standards for support, and asserts that paragraph
(c)(1)(i)(B) of the DFARS clause includes a consideration of
reasonableness, which the proposed FAR rule does not, specifically:
``Effective security services are unavailable at a reasonable cost.''
Response: The Councils concur that the FAR text should also include
a consideration of reasonable cost. The Councils have modified the
wording of paragraph 25.301-2(a)(2) by adding the words ``at a
reasonable cost.''
f. Security Costs Should Be a Cost Reimbursement Line Item
Comment: One respondent states that security costs should be a cost
reimbursement line item, even in a fixed-price contract, or provide
equitable adjustment to reflect material changes in the threat
environment.
Response: According to FAR 16.103, selecting the appropriate
contract type
[[Page 10952]]
is generally a matter of negotiation and requires the exercise of sound
judgment. The contractor's responsibility for the performance costs and
the profit/fee incentives offered are tailored to the uncertainties
involved in contract performance. While the Councils acknowledge that
there may be a high degree of uncertainty in the costs for security,
the determination of how to handle that uncertainty is a matter of
negotiation, rather than regulation.
12. Compliance With Laws, Regulations, and Directives (52.225-19(d))
Paragraph (d) of the proposed rule clause required the contractor
to comply with, and ensure that its deployed personnel are familiar and
will comply with, all applicable laws, rules and regulations, including
those of the ``host country,'' all treaties and international
agreements, all U.S. regulations, and all orders, directives and
instructions issued by the Chief of Mission or Combatant Commander
relating to mission accomplishments.
a. Lack of Access to Necessary Information on Laws, Regulations, and
Directives
Comment: One respondent states that rarely will contractors, let
alone offerors, have access to any (and certainly not all) relevant
orders, directives, instructions, policies and procedures of the Chief
of Mission or the Combatant Commander, even in those ``narrow''
functional areas specified in the clause. The respondent also states
that frequently a contractor is asked to deploy to countries or areas
of the world on short notice without extended advance notice and
without meaningful access to information on relevant foreign and local
laws.
Response: Paragraph 52.225-19(d) of the clause is a requirement of
the existing obligation for contractor personnel to comply with the
laws and regulations applicable to the contract. Contractors have
access to all of these laws and regulations and are required to comply
with them. Country studies are available online at http://
www.state.gov. Such available online resources indicate that a
contractor may ascertain on its own the laws and regulations necessary
to comply with paragraph 52.225-19(d). In addition, the contractor
supporting contingency operations should have access to any orders,
directives, instructions, policies, and procedures of the Chief of
Mission or Combatant Commander that have an effect or impact contract
performance in the designated operational area.
b. Varying Need for Extensive Information
Comment: One respondent states that deployed employees may have no
need for certain types of information that are unrelated to their
specific work assignment.
Response: The clause only requires knowledge of applicable laws. If
the laws or regulations are not applicable to a particular employee,
then the information should be tailored as appropriate.
c. Inconsistency Between U.S. Laws and Host or Third Country National
Laws and Between Orders of the Combatant Commander/Chief of Mission
Comment: One respondent recommends that the clause address how U.S.
contractors are to resolve conflicts between compliance with U.S. law
and any inconsistent law of host or third country national laws. The
respondent also recommends that the clause address how U.S. contractors
are to resolve conflicts between the Chief of Mission and the Combatant
Commander. Another respondent notes that there is a lack of guidance on
how to resolve conflicts between a directive or order given by the
Chief of Mission and the Combatant Commander. The respondent believes
that the roles of the Chief of Mission and Combatant Commander should
be defined in the rule.
Another respondent also states that the roles of the Combatant
Commander and Chief of Mission are intermingled in the FAR clause and
not adequately distinguished. They note that both the Combatant
Commander and the Chief of Mission have authority to require compliance
with directives, evacuation orders, and the use of force in using
weapons. The respondent believes that because the Combatant Commander
and the Chief of Mission's authority will overlap, the rule should
describe expected coordination between the two and should establish an
order of precedence.
Response: The Councils do not concur that the clause should address
how U.S. contractors are to resolve conflicts between compliance with
U.S. law and any inconsistent law of host or third country national
laws or conflicts between the Chief of Mission and the Combatant
Commander. The resolution of such conflicts are required to be analyzed
on a case-by-case basis, and, therefore, are beyond the scope and
intent of the regulations.
Orders of the Combatant Commander and the Chief of Mission
ordinarily should not conflict since each of these individuals is
assigned to lead a different type of mission--one diplomatic or
humanitarian and the other a military operation within the designated
operational area. The respective roles of the Combatant Commanders and
Chief of Mission are not defined further for purposes of the FAR clause
in order to allow their roles to be defined on a case-by-case basis for
each specific mission because each mission will have to address
different requirements and in-country conditions. The roles of the
Combatant Commander and Chief of Mission are defined at the activity
level, and cannot be further defined in the regulation.
Furthermore, paragraph 52.225-19(d) 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 interpretation and
determination when deciding which law or regulation takes precedence in
the event of a conflict.
d. Too Much Authority to Combatant Commander/Chief of Mission to Become
Involved in the Contracting Process
Comment: One respondent states that it recognizes that the Chief of
Mission has general oversight authority of operations under its
control. However, the respondent believes that the proposed rule would
significantly expand that authority and permit the Chief of Mission to
insert himself in the contracting process. The respondent is
particularly concerned that under paragraph 52.225-19(d)(4) of the
clause, the Chief of Mission's or Combatant Commander's authority is so
broadly worded that it would allow the Combatant Commander or Chief of
Mission to become unduly involved in the contracting process, and to
direct contractor activities of U.S. agencies. The respondent states
that paragraph 52.225-19(d) could be interpreted as empowering
ambassadors and Chiefs of Mission to issue instructions for individual
contracts on a wide spectrum of matters. This authority should be
rephrased to limit ``orders, directives, and instructions'' that apply
to all United States nationality contractors in country and then only
with respect to security and safety matters. The ``relations and
interactions with local nationals,'' language is too broad and should
be deleted.
Response: Paragraph 52.225-19(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
[[Page 10953]]
Combatant Commanders/Chiefs of Mission to direct the contracting
activities of other U.S. Government agencies.
The Councils do not agree that the phrase should be limited to
orders, directives and instructions that apply to all United States
nationality contractors in country as the respondent suggests. There
may be foreign companies that are awarded contracts to support U.S.
Armed Forces deployed abroad for specific requirements. To narrow the
scope of the application of the rule in the manner the respondent
suggests would preclude such companies from being covered.
Additionally, orders of the Combatant Commander extend beyond just
security and safety matters. Health and force protection are additional
issues that the scope of the orders may also encompass.
However, the Councils have reworded paragraph 52.225-19(d)(4) of
the FAR clause to limit it to force protection, security, health, and
safety orders, directives, and instructions issued by the Chief of
Mission or the Combatant Commander. The phrases regarding ``mission
accomplishment'' and ``relations and interaction with local nationals''
have been deleted from the FAR clause as being less applicable to
contractors that are not authorized to accompany the U.S. Armed Forces.
The paragraph also now reiterates that only the contracting officer is
authorized to modify the terms and conditions of the contract.
13. Preliminary Personnel Requirements (52.225-19(e))
a. Already Have Comparable Agency Requirements
Comment: One respondent notes that the agency they represent
already has requirements that satisfy those in (e)(2)(i)-(vii), with
the exception of personal security training and registration with the
Embassy.
Response: If the agency already has requirements that satisfy most
of those in (e)(2)(i)-(vii), they will meet the clause requirement that
specific information be set forth elsewhere in the contract by ensuring
that this language is included in the contract.
b. Background Checks Acceptable
Comment: One respondent recommends that the language of
subparagraph (e)(2)(i) be changed to read ``All required security and
background checks are completed and acceptable,'' because the language,
as written, omits the notion of ``acceptability''.
Response: The Councils concur with the recommended change to
subparagraph (e)(2)(i).
c. Immunizations
Comment: One respondent recommends that the contractor be required
to comply with the requirements of (e)(2)(ii) ``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.
Response: The Councils believe that the contractor should be aware
of all of the security and background checks and vaccinations, since
the Government is required to provide specific information in the
contract regarding these requirements.
Comment: The respondent also comments that the FAR clause in
subparagraph (e)(2)(ii) places on the contractor the cost of
immunizations. The respondent questions why there is a difference in
the FAR policy versus the DoD policy, since DoD provides the relevant
immunizations to contractor personnel.
Response: Individual agencies have policies relating to the
provision of required vaccinations for contractor personnel, and those
individual policies must be reflected elsewhere in the contract where
they conflict with the clause. For example, the Department of State's
policy is not to provide contractor employees with routine or travel
immunizations. Contractors must factor this cost into their proposals
when responding to solicitations where the requirement applies. Should
there be any exceptions to this policy, it will be specifically
outlined in the statement of work or elsewhere in the contract, as
required by paragraph (e)(1) of the clause.
d. Foreign Visas
Comment: One respondent states that contactors should not have to
obtain foreign government approval through entrance or exit visas
before implementing a contract.
Response: The Councils note that they do not have the authority to
waive the visa requirements of foreign governments. Where a contractor
is experiencing problems obtaining any necessary visas, it should
advise the contracting officer so that the Government can take action
to assist, if possible.
e. Isolated Personnel Training
Comment: One respondent requests that the phrase ``isolated
personnel training'' be explained.
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. The Councils have added an
explanation of isolated personnel training as requested.
f. Further Explanation of Requirement To Register With U.S. Embassy or
Consulate ((e)(2)(vii))
Comment: One respondent observes that only subparagraphs 52.225-
19(e)(2)(i)-(vi) are required to be included in the statement of work
or elsewhere in the contract, and recommends that subparagraph (vii)
also be included for further explanation.
Response: Subparagraph (e)(2)(vii), registration with the Embassy,
stands on its own and does not require any further implementation or
explanation.
g. Geneva Conventions Identification Card
Comment: One respondent questions why the FAR language does not
provide for a Geneva Convention identification card for contractor
employees, as the DFARS clause provides. The respondent contends that
civilian agencies may award contracts that could be in support of U.S.
Armed Forces, which would trigger the requirement for Geneva Convention
identification cards. The respondent points to the language in
(e)(3)(i) that applies the Military Extraterritorial Jurisdiction Act
of 2000 (MEJA) to contracts awarded by civilian agencies in support of
DoD's mission, and states that since MEJA applies to contractor
personnel ``accompanying the force'', by extension, so should the
Geneva Convention identification card requirements.
Response: The requirements for application of the Geneva
Conventions and the Military Extraterritorial Jurisdiction Act (MEJA)
are different. With respect to the Geneva Conventions identification
card, according to DoDI 1000.1, Identity Cards Required by Geneva
Conventions, Geneva Conventions Identity Cards (DD Form 489) are issued
only to contractors who are accompanying the U.S. Armed Forces in
regions of combat and who are liable to capture and detention by the
enemy as prisoners of war. MEJA applies to all contractors employed by
DoD or any other Federal agency or provisional authority, to the extent
such
[[Page 10954]]
employment relates to supporting the mission of DoD overseas. These
contractors are not necessarily ``authorized to accompany the force''
as that term is used in the DFARS clause and the Geneva Conventions.
The term ``accompanying the Armed Forces outside the United States'' in
MEJA extends to dependents of contractors employed by the Armed Forces
outside the United States, whereas the Geneva Conventions card does
not. Dependents would not be present with the Armed Forces during an
armed conflict. The Councils cannot think of any circumstances where
civilian agencies would award contracts under which contractor
personnel are authorized to accompany U.S. military forces during an
armed international conflict. That is the direct responsibility of DoD.
14. Processing and Departure Points (52.225-19(f))
a. Economic Burden
Comment: One respondent commented that the clause requirement in
paragraph (f), for departure and reception centers, would impose
economic burdens on contractors. The respondent suggested that
processing requirements ``only be applicable to situations when
contractors are entering a specific ``theater of operations.''
Response: The clause was written in a way intended to provide
flexibility to agencies. Furthermore, the Councils do not concur with
the assertion that the requirement for departure and reception centers
would impose economic burdens on contractors. Processing through an
established departure center and reception center could provide the
necessary information and training to contractor personnel at less
expense than if the contractor has to provide it. With regard to
subparagraph (f)(3), the Councils agreed to insert the word ``as'' in
front of ``designated'' in (f)(3), in order to maintain the same
flexibility as appears in (f)(1) and (f)(2).
b. FAR Requirement for Joint Reception Centers
Comment: One respondent states that the DFARS requires contractor
employees to process through a Joint Reception Center, which will brief
contractor personnel on theater specific policies and procedures. The
respondent states that the FAR should have the same requirement as in
the DFARS.
Response: The Councils concur that this would be a good idea, but
civilian agencies do not necessarily have access to reception centers.
Therefore, the language was left more flexible, to be as designated by
the Contracting Officer.
15. Personnel Data List (52.225-19(g))
a. Privacy Act
Comment: One respondent poses the question of whether the Privacy
Act will apply to the implementation of a Personnel Data List database.
Response: The Privacy Act (5 U.S.C. 552a) does apply to any system
of records established by the Government. Paragraph (e)(4) of the
Privacy Act requires that an agency publish in the Federal Register,
upon establishment or revision, a notice of the existence and character
of the system of records. To the extent that an agency is entering the
contractor data into a Government system of records, each agency must
ensure compliance with the Privacy Act.
b. Agency Has Data Clause
Comment: The respondent also comments that the agency that they
represent has an existing personnel data clause for tracking their
contractor personnel.
Response: The Councils have added the words ``unless personnel data
requirements are otherwise specified in the contract,'' so that
agencies can continue to implement their own data systems, until a
Governmentwide agreement is reached on a central database.
c. Collect General Location
Comment: One respondent questions why the FAR clause does not
specify that the list will collect information on general location in
the theater of operations.
Response: The FAR rule leaves it to the discretion of the civilian
agencies what data to collect at this time.
16. Contractor Personnel (52.225-19(h))
Comment: One respondent comments that the authority in this
paragraph is rather sweeping, although analogous to existing language
in USAID rules. However, it appears to delegate down to the contracting
officer authority that is currently exercised under USAID regulations
by the chief of mission or mission director.
Response: For the contractor, the contracting officer is the point
of contact with the Government. The contracting officer is unlikely to
take these actions independent of the chief of missions and is subject
to the control of agency regulations. The Councils have also deleted
the phrase ``jeopardize or interfere with mission accomplishment'' from
the FAR rule because it is more a military than a civilian concept. In
addition, the Councils have changed the word ``clause'' to
``contract'', because personnel can be removed for violation of any of
the requirements of the contract, not just this clause.
17. Military Clothing (52.225-19(k))
Comment: One respondent recommends that if contractor personnel are
authorized to wear military uniforms, they should be required to carry
the written authorization with them at all times, as required in the
DFARS. The omission may place an additional hazard on contractor
personnel, because such authorization would provide further evidence
that they are not military personnel.
Response: There is no Governmentwide policy requiring or providing
standard letters of authorization for contractor personnel that are not
authorized to accompany the U.S. Armed Forces. Therefore, the FAR does
not require carrying of written authorization. However, carrying such
authorization would be a good idea, and the contractor can require its
personnel to carry such authorization with them.
18. Changes (52.225-19(p))
Comments: One respondent does not believe that ``so sweeping an
expansion'' to the Changes clause is justified; the standard Changes
clause is limited for important reasons, one of which is to insure that
Government contracts remain within clearly defined scopes. Similarly,
another respondent objects that such expansion of 52.225-19(p) to
include change in the place of performance could be interpreted to
require a contractor to move from Iraq to Kuwait or from East Timor to
Lebanon. Although the respondent strongly supports the requirement that
changes are subject to the changes clause, and therefore provides for
equitable adjustment when appropriate, the respondent also suggests
that an equitable adjustment should be explicitly required.
Response: The Councils do not consider the expansion of the Changes
clause to be a sweeping change, since it is patterned after the
standard ``Changes'' clause for construction contracts, which includes
changes in site performance. However, since this Changes clause is not
limited to use in construction contracts, a more generic terminology,
i.e., ``place of performance'' is more appropriate to use here than
``site.'' FAR 52.225-19(p) requires that any change orders issued under
that paragraph are subject to the provisions of the Changes clause of
the contract. Whichever Changes clause is included in the contract, it
requires that any changes be within scope of the
[[Page 10955]]
contract, and provides for equitable adjustment when appropriate.
Therefore, it is not necessary to restate those principles here.
19. Subcontract Flowdown (52.225-19(q))
a. Obligation and Role of the Parties (Government/Contractor)
Comment: Several respondents suggest that the Government should
more clearly state what parts of the clause are to be flowed down and
whether for each provision, the contractor is to act in the
Government's stead.
Response: The language contained in this clause is not any
different than the language contained in other acquisition clauses that
require certain clauses to be flowed down to subcontractors. The clause
authorizes flow down to subcontracts, when subcontract personnel meet
the criteria for applicability. The language ``shall incorporate the
substance of this clause'' is meant to allow latitude in correctly
stating the relationship of the parties. The Government does not have
privity of contract with subcontractors.
b. Flow Down of Support
Comment: One respondent states that the clause at 52.225-19(q)
requires the prime contractor to incorporate the substance of the
clause, including this paragraph, in all subcontracts that require
subcontractor employees to perform outside the U.S. in stated
operations. While the respondent does not object to the policy, they
are concerned about 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.
Response: Since the FAR clause does not promise any support to
contractors, the flow down does not commit the Government to undertake
affirmative support of subcontractors.
c. Flow Down to Private Security Contractors
Comment: One respondent is concerned that flowing down the clause
to private security contractors means that a prime contractor can
authorize a subcontractor to use deadly force.
Response: Although the prime contractor flows down the clause, the
use of deadly force is always subject to the authority of the chief of
mission/combatant commander, who authorizes the possession of weapons
and the rules for their use.
20. Defense Base Act
a. Expansion of Functions
Comment: One respondent states that ``self defense contracts'' and
private security contracts continue, as a matter of law, to include
compliance with the Defense Base Act. The respondent states that, with
this expansion in the rule of the functions to be performed by
contractor personnel, it becomes unclear that coverage will be
available to contractors.
Response: There is no expansion of the functions to be performed by
contractor personnel related to the FAR rule that the respondent
envisions.
Furthermore, the courts have determined that the Defense Base Act
(DBA) applies to any overseas contract that has a nexus to either a
national defense activity or a facility construction or improvement
project. There is no current legal ruling applying the DBA to private
security contracts with non-DoD agencies or for work other than
facility construction or improvement projects to be performed outside
the United States. However, almost any contract with a U.S. Government
agency for work outside the United States will likely require Defense
Base Act coverage, if the contract is deemed necessary by national
security. Contracting officers will have to determine whether any
particular contract should include the FAR 52.228-3, Workers'
Compensation Insurance (DBA) clause in service contracts to be
performed (either entirely or in part) outside of the United States as
well as in supply contracts that also require the performance of
employee services overseas. DBA coverage exists as long as contract
performance falls within the scope of the statutory requirements. The
proposed rule does not change or preclude DBA coverage.
If the respondent was concerned about unavailability of DBA
coverage because of high cost, or unwillingness of insurance providers
to make available when high risk is involved, many agencies such as the
Department of State and USAID have negotiated arrangements with
insurance companies to make insurance available to their contractors.
Further, expenses incurred relating to war hazards, the biggest risk,
will be reimbursed to the insurance companies.
b. Accepting All Risks
Comment: Another respondent was concerned that by accepting all
risks of performance, contractors would not be able to obtain workers
compensation insurance or reimbursement under the Defense Base Act. The
respondent thinks that the statement of accepting all risks could be
interpreted to mean that the Government is trying to restrict,
supersede, or alter contract or government rights under the Defense
Base Act.
Response: The statement regarding risk was intended to restate the
general rule that the contractor is responsible for fulfilling its
contract obligations, even in dangerous and austere conditions. It was
not intended to conflict with other provisions of the contract. The
Councils have added the requested phrase, ``Except as provided
elsewhere in the contract.''
21. Acquisition Plan
Comment: The rule adds a proposal to 7.105(b)(13) and (19)
requiring the contracting office to determine contractor or agency
support and special requirements of contracts to be performed in a
theater or operations or at a diplomatic or consular mission. The
respondent supports the proposal and suggests that the rule also
require coordination with affected Combatant Commander and Chief of the
Mission.
Response: FAR 7.104(a) provides that acquisition planning begin as
soon as the agency need is identified, and requires that the
acquisition planner form a team consisting of all those who will be
responsible for significant aspects of the acquisition. The section
identifies the contracting, fiscal, and legal, and technical personnel,
for example, as members of the team. Given the critical nature of
acquisitions associated with contractor personnel in a designated
operational area or supporting a diplomatic or consular mission outside
the United States, the Councils agree to revise FAR 7.104 to require
the planner to coordinate the requirements of such acquisition plans
with combatant commanders or chiefs of mission, as appropriate.
22. Regulatory Flexibility Act
Comment: One respondent asserts that it is entirely possible that
the rule would render much of the Stability Operations contracting, now
primarily accomplished by large, experienced and well-financed
international construction and engineering companies, the province of
many small businesses. The respondent questions the consideration that
went into the determination that small business would not be affected
by the rule.
Response: The purpose and effect of the rule is to relieve the
perceived burden on contractors operating without consistent guidance
or a standardized clause in a contingency environment.
[[Page 10956]]
By establishing a standardized clause spelling out uniform rules, the
rule effectively reduces the burden on small business. Additionally,
the availability of Government departure centers in the United States
will make it easier for small business to meet all the pre-departure
requirements. The Councils believe that the rule will be helpful to
small businesses and minimize any perceived burdens small businesses
may encounter in the performance of contract to which the rule applies.
The respondent does not provide justification for the statement
that Stability Operation contracting will shift from large businesses
to small businesses, or that it will cause harm to small business if it
were to occur.
Comment: One respondent disagrees with the statement that the rule
will not impose economic burdens on contractors, citing the requirement
to process through a departure center, use specific transportation
modes and process through a reception center will have a tremendous
impact on cost. The respondent goes on to provide examples of impacts
contractors suffered undergoing required background checks for
personnel in Bosnia and chemical, biological and nuclear training
requirements in Iraq. The respondent suggests that processing
requirements only be applicable to situations when contractors are
entering a specific ``theater of operations.''
Response: Processing through the departure center or using a
specific point of departure and transportation mode is at the direction
of the contracting officer, as is processing through a reception center
upon arrival. The Councils do not concur with the assertion that the
requirement for departure and reception centers would impose economic
burdens on contractors. The rule is written in general terms and
provides great flexibility.
The Councils did not receive any responses from small businesses
indicating that this rule would impose burdens on them.
23. Information Collection Requirements
Comment: One respondent contends that rule would impose substantial
information collection requirements on the contracting communities;
suggesting that transmogrification of battlefield contractors into
combatants portends huge increases in their information collection and
management responsibilities that are anything but usual and customary
and are well outside the ``normal course of business.''
Response: The Councils do not agree with the respondent's
contention. The rule does not provide for the transmogrification of
battlefield contractors into combatants or require huge increases in
their collection and management responsibilities. Although the rule
requires contractors to establish and maintain a current list of
contractor personnel in the area of performance with a designated
Government official, such information should be a part of the
contractor's personnel database and routinely maintained by the
contractor. Therefore, the Councils did not change the Paperwork
Reduction Act statement.
This is not a significant regulatory action and, therefore, was not
subject to review under Section 6(b) of Executive Order 12866,
Regulatory Planning and Review, dated September 30, 1993. This rule is
not a major rule under 5 U.S.C. 804.
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not have a significant economic impact on a substantial
number of small entities within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq., because the purpose and effect
of the rule is to relieve the perceived burden on contractors operating
without consistent guidance or a standardized clause in a contingency
environment. By establishing a standardized clause spelling out uniform
rules, the rule effectively reduces the burden on small business.
Additionally, the availability of Government departure centers in the
United States will make it easier for small business to meet all the
pre-departure requirements. The Councils believe that the rule will be
helpful to small businesses and minimize any perceived burdens small
businesses may encounter in the performance of the contract to which
the rule applies.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose information collection requirements that require
the approval of the Office of Management and Budget under 44 U.S.C.
3501, et seq. Although the final clause requires contractors to
maintain a current list of all employees in the area of operations in
support of the military force, the Councils believe that these
requirements are usual and customary and do not exceed what a
contractor would maintain in the normal course of business.
List of Subjects in 48 CFR Parts 2, 7, 12, 25, and 52
Government procurement.
Dated: February 19, 2008.
Al Matera,
Director, Office of Acquisition Policy.
0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 2, 7, 12, 25, and 52
as set forth below:
0
1. The authority citation for 48 CFR parts 2, 7, 12, 25, and 52
continues to read as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 2--DEFINITIONS OF WORDS AND TERMS
0
2. Amend section 2.101 in paragraph (b)(2) by adding, in alphabetical
order, the definitions ``Chief of mission'', ``Combatant commander'',
``Designated operational area'', and ``Supporting a diplomatic or
consular mission'' to read as follows:
2.101 Definitions.
* * * * *
(b) * * *
(2) * * *
Chief of mission means the principal officer in charge of a
diplomatic mission of the United States or of a United States office
abroad which is designated by the Secretary of State as diplomatic in
nature, including any individual assigned under section 502(c) of the
Foreign Service Act of 1980 (Public Law 96-465) to be temporarily in
charge of such a mission or office.
* * * * *
Combatant commander means the commander of a unified or specified
combatant command established in accordance with 10 U.S.C. 161.
* * * * *
Designated operational area means a geographic area designated by
the combatant commander or subordinate joint force commander for the
conduct or support of specified military operations.
* * * * *
Supporting a diplomatic or consular mission means performing
outside the United States under a contract administered by Federal
agency personnel who are subject to the direction of a Chief of
Mission.
* * * * *
PART 7--ACQUISITION PLANNING
0
3. Amend section 7.104 by revising paragraph (a) to read as follows:
[[Page 10957]]
7.104 General procedures.
(a) Acquisition planning should begin as soon as the agency need is
identified, preferably well in advance of the fiscal year in which
contract award or order placement is necessary. In developing the plan,
the planner shall form a team consisting of all those who will be
responsible for significant aspects of the acquisition, such as
contracting, fiscal, legal, and technical personnel. If contract
performance is to be in a designated operational area or supporting a
diplomatic or consular mission, the planner shall also consider
inclusion of the combatant commander or chief of mission, as
appropriate. The planner should review previous plans for similar
acquisitions and discuss them with the key personnel involved in those
acquisitions. At key dates specified in the plan or whenever
significant changes occur, and no less often than annually, the planner
shall review the plan and, if appropriate, revise it.
* * * * *
0
4. Amend section 7.105 by--
0
a. Revising paragraph (b)(13)(i);
0
b. Removing from paragraph (b)(19)(vi) the word ``and'';
0
c. Redesignating paragraph (b)(19)(vii) as paragraph (b)(19)(viii); and
0
d. Adding a new paragraph (b)(19)(vii) to read as follows:
7.105 Contents of written acquisition plans.
* * * * *
(b) * * *
(13) Logistics consideration. Describe--(i) The assumptions
determining contractor or agency support, both initially and over the
life of the acquisition, including consideration of contractor or
agency maintenance and servicing (see Subpart 7.3), support for
contracts to be performed in a designated operational area or
supporting a diplomatic or consular mission (see 25.301-3); and
distribution of commercial items;
* * * * *
(19) * * *
(vii) Special requirements for contracts to be performed in a
designated operational area or supporting a diplomatic or consular
mission; and
* * * * *
PART 12--ACQUISITION OF COMMERCIAL ITEMS
0
5. Amend section 12.301 by revising paragraph (d) to read as follows:
12.301 Solicitation provisions and contract clauses for the
acquisition of commercial items.
* * * * *
(d) Other required provisions and clauses. (1) Notwithstanding
prescriptions contained elsewhere in the FAR, when acquiring commercial
items, contracting officers shall be required to use only those
provisions and clauses prescribed in this part. The provisions and
clauses prescribed in this part shall be revised, as necessary, to
reflect the applicability of statutes and executive orders to the
acquisition of commercial items.
(2) Insert the clause at 52.225-19, Contractor Personnel in a
Designated Operational Area or Supporting a Diplomatic or Consular
Mission outside the United States, as prescribed in 25.301-4.
* * * * *
PART 25--FOREIGN ACQUISITION
0
6. Revise section 25.000 to read as follows:
25.000 Scope of part.
(a) This part provides policies and procedures for--
(1) Acquisition of foreign supplies, services, and construction
materials; and
(2) Contracts performed outside the United States.
(b) It implements the Buy American Act, trade agreements, and other
laws and regulations.
25.002 [Amended]
0
7. Amend the table in section 25.002 in the third row titled 25.3 as
follows:
0
a. In the second column by removing ``[Reserved]'' and adding
``Contracts Performed Outside the United States'' in its place;
0
b. In the fourth and sixth columns removing ``--'' and adding ``X'' in
its place; and
0
c. In the eighth column adding ``X''.
0
8. Add Subpart 25.3 to read as follows:
Subpart 25.3--Contracts Performed Outside the United States
Sec.
25.301 Contractor personnel in a designated operational area or
supporting a diplomatic or consular mission outside the United
States.
25.301-1 Scope.
25.301-2 Government support.
25.301-3 Weapons.
25.301-4 Contract clause.
Subpart 25.3--Contracts Performed Outside the United States
25.301 Contractor personnel in a designated operational area or
supporting a diplomatic or consular mission outside the United States.
25.301-1 Scope.
(a) This section applies to contracts requiring contractor
personnel to perform outside the United States--
(1) In a designated operational area during--
(i) Contingency operations;
(ii) Humanitarian or peacekeeping operations; or
(iii) Other military operations or military exercises, when
designated by the combatant commander; or
(2) When supporting a diplomatic or consular mission--
(i) That has been designated by the Department of State as a danger
pay post (see http://aoprals.state.gov/Web920/danger_pay_all.asp); or
(ii) That the contracting officer determines is a post at which
application of the clause at FAR 52.225-19, Contractor Personnel in a
Designated Operational Area or Supporting a Diplomatic or Consular
Mission outside the United States, is appropriate.
(b) Any of the types of operations listed in paragraph (a)(1) of
this section may include stability operations such as--
(1) Establishment or maintenance of a safe and secure environment;
or
(2) Provision of emergency infrastructure reconstruction,
humanitarian relief, or essential governmental services (until feasible
to transition to local government).
(c) This section does not apply to personal services contracts (see
FAR 37.104), unless specified otherwise in agency procedures.
25.301-2 Government support.
(a) Generally, contractors are responsible for providing their own
logistical and security support, including logistical and security
support for their employees. The agency shall provide logistical or
security support only when the appropriate agency official, in
accordance with agency guidance, determines that--
(1) Such Government support is available and is needed to ensure
continuation of essential contractor services; and
(2) The contractor cannot obtain adequate support from other
sources at a reasonable cost.
(b) The contracting officer shall specify in the contract, and in
the solicitation if possible, the exact support to be provided, and
whether this
[[Page 10958]]
support is provided on a reimbursable basis, citing the authority for
the reimbursement.
25.301-3 Weapons.
The contracting officer shall follow agency procedures and the
weapons policy established by the combatant commander or the chief of
mission when authorizing contractor personnel to carry weapons (see
paragraph (i) of the clause at 52.225-19, Contractor Personnel in a
Designated Operational Area or Supporting a Diplomatic or Consular
Mission outside the United States).
25.301-4 Contract clause.
Insert the clause at 52.225-19, Contractor Personnel in a
Designated Operational Area or Supporting a Diplomatic or Consular
Mission outside the United States, in solicitations and contracts,
other than personal service contracts with individuals, that will
require contractor personnel to perform outside the United States--
(a) In a designated operational area during--
(1) Contingency operations;
(2) Humanitarian or peacekeeping operations; or
(3) Other military operations or military exercises, when
designated by the combatant commander; or
(b) When supporting a diplomatic or consular mission--
(1) That has been designated by the Department of State as a danger
pay post (see http://aoprals.state.gov/Web920/danger_pay_all.asp); or
(2) That the contracting officer determines is a post at which
application of the clause FAR 52.225-19, Contractor Personnel in a
Designated Operational Area or Supporting a Diplomatic or Consular
Mission outside the United States, is appropriate.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
9. Add section 52.225-19 to read as follows:
52.225-19 Contractor Personnel in a Designated Operational Area or
Supporting a Diplomatic or Consular Mission Outside the United States.
As prescribed in 25.301-4, insert the following clause:
Contractor Personnel in a Designated Operational Area or Supporting a
Diplomatic or Consular Mission Outside the United States (Mar 2008)
(a) Definitions. As used in this clause--
Chief of mission means the principal officer in charge of a
diplomatic mission of the United States or of a United States office
abroad which is designated by the Secretary of State as diplomatic
in nature, including any individual assigned under section 502(c) of
the Foreign Service Act of 1980 (Pub. L. 96-465) to be temporarily
in charge of such a mission or office.
Combatant commander means the commander of a unified or
specified combatant command established in accordance with 10 U.S.C.
161.
Designated operational area means a geographic area designated
by the combatant commander or subordinate joint force commander for
the conduct or support of specified military operations.
Supporting a diplomatic or consular mission means performing
outside the United States under a contract administered by Federal
agency personnel who are subject to the direction of a chief of
mission.
(b) General. (1) This clause applies when Contractor personnel
are required to perform outside the United States--
(i) In a designated operational area during--
(A) Contingency operations;
(B) Humanitarian or peacekeeping operations; or
(C) Other military operations; or military exercises, when
designated by the Combatant Commander; or
(ii) When supporting a diplomatic or consular mission--
(A) That has been designated by the Department of State as a
danger pay post (see http://aoprals.state.gov/Web920/danger--pay--
all.asp); or
(B) That the Contracting Officer has indicated is subject to
this clause.
(2) Contract performance may require work in dangerous or
austere conditions. Except as otherwise provided in the contract,
the Contractor accepts the risks associated with required contract
performance in such operations.
(3) Contractor personnel are civilians.
(i) Except as provided in paragraph (b)(3)(ii) of this clause,
and in accordance with paragraph (i)(3) of this clause, Contractor
personnel are only authorized to use deadly force in self-defense.
(ii) Contractor personnel performing security functions are also
authorized to use deadly force when use of such force reasonably
appears necessary to execute their security mission to protect
assets/persons, consistent with the terms and conditions contained
in the contract or with their job description and terms of
employment.
(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. Unless specified elsewhere in the contract, the
Contractor is responsible for all logistical and security support
required for Contractor personnel engaged in this contract.
(d) Compliance with laws and regulations. The Contractor shall
comply with, and shall ensure that its personnel in the designated
operational area or supporting the diplomatic or consular mission
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) Force protection, security, health, or safety orders,
directives, and instructions issued by the Chief of Mission or the
Combatant Commander; however, only the Contracting Officer is
authorized to modify the terms and conditions of the contract.
(e) Preliminary personnel requirements. (1) Specific
requirements for paragraphs (e)(2)(i) through (e)(2)(vi) of this
clause will be set forth in the statement of work, or elsewhere in
the contract.
(2) Before Contractor personnel depart from the United States or
a third country, and before Contractor personnel residing in the
host country begin contract performance in the designated
operational area or supporting the diplomatic or consular mission,
the Contractor shall ensure the following:
(i) All required security and background checks are complete and
acceptable.
(ii) All personnel are medically and physically fit and have
received all required vaccinations.
(iii) All personnel have all necessary passports, visas, entry
permits, and other documents required for Contractor personnel to
enter and exit the foreign country, including those required for in-
transit countries.
(iv) All personnel have received--
(A) A country clearance or special area clearance, if required
by the chief of mission; and
(B) Theater clearance, if required by the Combatant Commander.
(v) All personnel have received personal security training. The
training must at a minimum--
(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. Isolated personnel are military or
civilian personnel separated from their unit or organization in an
environment requiring them to survive, evade, or escape while
awaiting rescue or recovery.
(vii) All personnel who are U.S. citizens are registered with
the U.S. Embassy or Consulate with jurisdiction over the area of
operations on-line at http://www.travel.state.gov.
(3) The Contractor shall notify all personnel who are not a host
country national or ordinarily resident in the host country that--
(i) If this contract is with the Department of Defense, or the
contract relates to supporting the mission of the Department of
Defense outside the United States, 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 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
[[Page 10959]]
United States (see the Military Extraterritorial Jurisdiction Act of
2000 (18 U.S.C. 3261 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 war crime when committed by a civilian national of the
United States; and
(iii) Other laws may provide for prosecution of U.S. nationals
who commit offenses on the premises of United States diplomatic,
consular, military or other United States Government missions
outside the United States (18 U.S.C. 7(9)).
(f) Processing and departure points. The Contractor shall
require its personnel who are arriving from outside the area of
performance to perform in the designated operational area or
supporting the diplomatic or consular mission to--
(1) Process through the departure center designated in the
contract or complete another process as directed by the Contracting
Officer;
(2) Use a specific point of departure and transportation mode as
directed by the Contracting Officer; and
(3) Process through a reception center as designated by the
Contracting Officer upon arrival at the place of performance.
(g) Personnel data. (1) Unless personnel data requirements are
otherwise specified in the contract, the Contractor shall establish
and maintain with the designated Government official a current list
of all Contractor personnel in the areas of performance. The
Contracting Officer will inform the Contractor of the Government
official designated to receive this data and the appropriate system
to use for this effort.
(2) The Contractor shall ensure that all employees on this list
have a current record of emergency data, for notification of next of
kin, on file with both the Contractor and the designated Government
official.
(h) Contractor personnel. The Contracting Officer may direct the
Contractor, at its own expense, to remove and replace any Contractor
personnel who fail to comply with or violate applicable requirements
of this contract. Such action may be taken at the Government's
discretion without prejudice to its rights under any other provision
of this contract, including termination for default or cause.
(i) Weapons. (1) If the Contracting Officer, subject to the
approval of the Combatant Commander or the Chief of Mission,
authorizes the carrying of weapons--
(i) The Contracting Officer may authorize an approved Contractor
to issue Contractor-owned weapons and ammunition to specified
employees; or
(ii) The ------------ [Contracting Officer to specify
individual, e.g., Contracting Officer Representative, Regional
Security Officer, etc,] may issue Government-furnished weapons and
ammunition to the Contractor for issuance to specified Contractor
employees.
(2) The Contractor shall provide to the Contracting Officer a
specific list of personnel for whom authorization to carry a weapon
is requested.
(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 or the Chief of
Mission; 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 or the Chief of Mission regarding possession, use, safety,
and accountability of weapons and ammunition.
(4) Upon revocation by the Contracting Officer of the
Contractor's authorization to possess weapons, the Contractor shall
ensure that all Government-furnished weapons and unexpended
ammunition are returned as directed by the Contracting Officer.
(5) 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.
(j) Vehicle or equipment licenses. Contractor personnel shall
possess the required licenses to operate all vehicles or equipment
necessary to perform the contract in the area of performance.
(k) Military clothing and protective equipment. (1) Contractor
personnel are prohibited from wearing military clothing unless
specifically authorized by the Combatant Commander. If authorized to
wear military clothing, Contractor personnel must wear distinctive
patches, armbands, nametags, or headgear, in order to be
distinguishable from military personnel, consistent with force
protection measures.
(2) Contractor personnel may wear specific items required for
safety and security, such as ballistic, nuclear, biological, or
chemical protective equipment.
(l) Evacuation. (1) If the Chief of Mission or Combatant
Commander orders a mandatory evacuation of some or all personnel,
the Government will provide to United States and third country
national Contractor personnel the level of assistance provided to
private United States citizens.
(2) In the event of a non-mandatory evacuation order, the
Contractor shall maintain personnel on location sufficient to meet
contractual obligations unless instructed to evacuate by the
Contracting Officer.
(m) Personnel recovery. (1) In the case of isolated, missing,
detained, captured or abducted Contractor personnel, the Government
will assist in personnel recovery actions.
(2) Personnel recovery may occur through military action, action
by non-governmental organizations, other Government-approved action,
diplomatic initiatives, or through any combination of these options.
(3) The Department of Defense has primary responsibility for
recovering DoD contract service employees and, when requested, will
provide personnel recovery support to other agencies in accordance
with DoD Directive 2310.2, Personnel Recovery.
(n) Notification and return of personal effects. (1) The
Contractor shall be responsible for notification of the employee-
designated next of kin, and notification as soon as possible to the
U.S. Consul responsible for the area in which the event occurred, if
the employee--
(i) Dies;
(ii) Requires evacuation due to an injury; or
(iii) Is isolated, missing, detained, captured, or abducted.
(2) The Contractor shall also be responsible for the return of
all personal effects of deceased or missing Contractor personnel, if
appropriate, to next of kin.
(o) Mortuary affairs. Mortuary affairs for Contractor personnel
who die in the area of performance will be handled as follows:
(1) If this contract was awarded by DoD, the remains of
Contractor personnel will be handled in accordance with DoD
Directive 1300.22, Mortuary Affairs Policy.
(2)(i) If this contract was awarded by an agency other than DoD,
the Contractor is responsible for the return of the remains of
Contractor personnel from the point of identification of the remains
to the location specified by the employee or next of kin, as
applicable, except as provided in paragraph (o)(2)(ii) of this
clause.
(ii) In accordance with 10 U.S.C. 1486, the Department of
Defense may provide, on a reimbursable basis, mortuary support for
the disposition of remains and personal effects of all U.S. citizens
upon the request of the Department of State.
(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 place of performance or Government-furnished facilities,
equipment, material, services, or site. Any change order issued in
accordance with this paragraph shall be subject to the provisions of
the Changes clause of this contract.
(q) Subcontracts. The Contractor shall incorporate the substance
of this clause, including this paragraph (q), in all subcontracts
that require subcontractor personnel to perform outside the United
States--
(1) In a designated operational area during--
(i) Contingency operations;
(ii) Humanitarian or peacekeeping operations; or
(iii) Other military operations; or military exercises, when
designated by the Combatant Commander; or
(2) When supporting a diplomatic or consular mission--
(i) That has been designated by the Department of State as a
danger pay post (see http://aoprals.state.gov/Web920/danger--pay--
all.asp); or
(ii) That the Contracting Officer has indicated is subject to
this clause.
(End of clause)
[FR Doc. E8-3364 Filed 2-27-08; 8:45 am]
BILLING CODE 6820-EP-P