[Federal Register Volume 68, Number 229 (Friday, November 28, 2003)]
[Rules and Regulations]
[Pages 66740-66741]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-29417]


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DEPARTMENT OF DEFENSE

Department of the Army

48 CFR Part 5152

RIN 0702-AA39


Solicitation Provisions and Contract Clauses

AGENCY: Department of Army, DOD.

ACTION: Interim final rule; Request for comments.

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SUMMARY: The Department of the Army is amending its Acquisition 
Regulations to increase consistency in Army contracts that may require 
deployment of contractor personnel. This change is a consolidation and 
summarization of current information available in several documents, 
some of which are currently in draft form, and does not include new 
Army contracting policy. The purpose of this issuance is to notify 
interested parties of this change, and to request the public's 
comments. This change is issued by the Assistant Secretary of the Army 
(Acquisition, Logistics, and Technology) (ASA(ALT)). This issuance is 
made concurrent with publication of an interim rule with request for 
comments to add rules concerning Foreign Acquisition--Contractors 
Accompanying the Force, published in this issue of the Federal 
Register.

DATES: Effective date: November 28, 2003.
    Comment date: Comments must be submitted to the address shown below 
on or before January 27, 2004.

ADDRESSES: Respondents may e-mail comments to: 
[email protected]. Those who cannot submit comments by e-mail 
may submit comments to: Procurement Policy and Support Office, Attn: 
SAAL-PP, Sharon Wisniewski, Presidential Towers, 2511 S. Jeff Davis 
Highway, Arlington, VA, 22202, facsimile (703) 604-8178. Please cite 
``AFARS CAF Clause'' in the subject line of comments.

FOR FURTHER INFORMATION CONTACT: Sharon Wisniewski, (586) 574-7050 or 
Linda Fowlkes, (703)604-7104.

SUPPLEMENTARY INFORMATION: 

A. Background

    This issuance amends 48 CFR part 5152 (also referred to as the Army 
Federal Acquisition Regulation Supplement (AFARS)) to incorporate 
information to facilitate deploying contractor personnel to Iraq or 
other areas of operations. It also seeks to ease the administrative 
difficulty for each contractor and contracting office researching 
current guidance on contractors accompanying the force, and to increase 
consistency among Army contracts. This AFARS change is published to 
address contractor and Army contracting offices' questions and 
concerns. This notice was not subject to Office of Management and 
Budget review under Executive Order 12866, dated September 30, 1993.

B. Regulatory Flexibility Act

    The Army does not expect this rule to have a significant economic 
impact on a substantial number of small entities within the meaning of 
the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the rule 
applies only to contractors that may require deployment of contractor 
personnel outside the United States, and because it only consolidates 
existing and draft logistical guidance. The amount of such additional 
services is not expected to be significantly large in comparison to the 
total amount of services procured by Army, and any additional costs 
would be reimbursable under the resulting contract. Therefore, Army has 
not performed an initial regulatory flexibility analysis. Army invites 
comments from small businesses and other interested parties. Army also 
will consider comments from small entities concerning the affected 
AFARS subpart in accordance with 5 U.S.C. 610. Such comments should be 
submitted separately and should cite ``Small Entities CAF comment.''

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the rule does 
not impose any information collection requirements that require the 
approval of the Office of Management and Budget under 44 U.S.C. 3501, 
et seq.

D. Determination To Issue a Rule Effective With Publication in the 
Federal Register

    A determination has been made under the authority of the Army 
Deputy Assistant Secretary of the Army (Policy & Procurement) that 
urgent and compelling reasons exist to publish this notice prior to 
affording the public an opportunity to comment. Contracting offices 
continue to write contracts that require contractor personnel to 
accompany the military force in Iraq and other places. Contractor 
representatives and contracting offices have requested inclusion of 
coverage in the AFARS expeditiously, even if not a complete solution, 
pending coverage on this topic in higher level regulations. Comments 
received in response to this notice will be considered.

Emily Clarke,
Director, Procurement Policy and Support.

List of Subjects in 48 CFR Part 5152

    Government contracts, Government procurement.

0
For reasons set forth in the preamble, the Department of the Army 
amends 48 CFR Part 5152 as follows:

PART 5152--SOLICITATIONS PROVISIONS AND CONTRACT CLAUSES

0
1. The authority citation for 5152.225-74-9000 is added to read as 
follows:

    Authority: 5 U.S.C. 301, 10 U.S.C. 2202, DOD Directive 5000.35, 
FAR 1.301 and DOD FAR Supplement 201.3.


0
2. Add 5152.225-74-9000 to read as follows:


5152.225-74-9000  Contractors Accompanying the Force.

    As prescribed at subpart 5125.74-9000(e) insert the following 
clause:

CONTRACTORS ACCOMPANYING THE FORCE (NOV. 2003)

    (a) General. (1) Performance of this contract may require 
deployment of Contractor Personnel in support of military 
operations. The Contractor acknowledges that such operations are 
inherently dangerous and accepts the risks associated with contract 
performance in this environment.
    (2) For purposes of this clause, the term ``Contractor 
Personnel'' refers to the Contractor's officers and employees. 
Unless otherwise specified (e.g., subparagraph (b) of this clause), 
this term does not include personnel who permanently reside in the 
country where contract performance will take place.
    (3) The Contractor shall ensure that Contractor Personnel 
working in an area of operations (AO, as defined in the Joint 
Publication 1-02, ``DOD Dictionary of

[[Page 66741]]

Military and Associated Terms'') are familiar and comply with 
applicable: (i) Military Service and Department of Defense 
regulations, directives, instructions, general orders, policies, and 
procedures, in particular Army Regulation 715-9 and Field Manual 3-
100.21; (ii) U.S., host country, local, and international laws and 
regulations; and (iii) treaties and international agreements (e.g., 
Status of Forces Agreements, Host Nation Support Agreements, and 
Defense Technical Agreements) relating to safety, health, force 
protection, and operations under this contract.
    (4) The Contractor shall ensure that this clause is included in 
all subcontracts.
    (b) Compliance with Combatant Command Orders. The Contractor 
shall ensure that Contractor Personnel, regardless of residency 
status, working in the AO comply with all orders, directives, and 
instructions of the combatant command relating to non-interference 
in military operations, force protection, health, and safety. The 
Combatant Commander or his subordinate commanders, in conjunction 
with the Contracting Officer or the Contracting Officer's 
Representative, may direct the Contractor, at the Contractor's own 
expense, to replace and, where applicable, repatriate any Contractor 
personnel who fail to comply with this provision. Such action may be 
taken at the Government's discretion without prejudice to its rights 
under any other provision of this contract, including the 
Termination for Default clause.
    (c) Contractor Personnel Administration. (1) In order to 
maintain accountability of all deployed personnel in the AO, the 
Contractor shall follow instructions issued by the Army Materiel 
Command's Logistics Support Element (AMC LSE) or other Contracting 
Officer's designated representative to provide, and keep current, 
requested data on Contractor Personnel for entry into military 
personnel database systems.
    (2) The Contractor shall coordinate with the AMC LSE or other 
Contracting Officer's designated representative for logistics 
support, as follows: (i) Upon initial entry into the AO; (ii) upon 
initiation of contract performance; (iii) upon relocation of 
contract operations within the AO; and (iv) upon exiting the AO.
    (3) Before deployment, the Contractor shall ensure that:
    (i) All Contractor Personnel complete two DD Forms 93, Record of 
Emergency Data Card. One copy of the completed form shall be 
returned to the Government official specified by the Contracting 
Officer's designated representative; the other shall be hand-carried 
by the individual employee to the AO.
    (ii) All required security and background checks are completed.
    (iii) All medical screening and requirements are met.
    (4) The Contractor shall ensure that Contractor Personnel have 
completed all pre-deployment requirements specified by the 
Contracting Officer's designated representative (including 
processing through the designated Continental United States (CONUS) 
Replacement Center unless another deployment processing method is 
specifically authorized), and the Contractor shall notify the 
Contracting Officer's designated representative that these actions 
have been accomplished.
    (5) The Contractor shall have a plan for timely replacement of 
employees who are no longer available for deployment for any reason, 
including mobilization as members of the Reserve, injury, or death.
    (d) Clothing and Equipment Issue. (1) To help distinguish them 
from combatants, Contractor Personnel shall not wear military 
clothing unless specifically authorized by a written Department of 
Army waiver. Contractor Personnel may wear specific items of 
clothing and equipment required for safety and security such as 
ballistic or NBC (Nuclear, Biological, Chemical) protective 
clothing. The CONUS Replacement Center or the combatant command may 
provide to the Contractor Personnel military unique Organizational 
Clothing and Individual Equipment (OCIE) to ensure security and 
safety.
    (2) All issued OCIE shall be considered Government Furnished 
Property, and will be treated in accordance with Government 
Furnished Property clauses included elsewhere in this contract.
    (e) Weapons and Training. (1) Contractor Personnel may not 
possess privately owned firearms in the AO. The combatant command 
may issue weapons and ammunition to Contractor Personnel, with the 
employee's company's consent as well as the individual employees' 
consent, and may require weapons and other pre-deployment training.
    (2) The Contractor shall ensure that Contractor Personnel follow 
all instructions by the combatant command, as well as applicable 
Military Service and DoD regulations, regarding possession, use, 
safety, and accountability of weapons and ammunition.
    (3) All issued weapons, ammunition, and accessories (e.g., 
holsters) shall be considered Government Furnished Property. Upon 
redeployment or notification by the combatant command, the 
Contractor shall ensure that all Government issued weapons and 
unused ammunition are returned to the point of issue using a method 
that complies with Military Service regulations for issue and turn-
in of firearms.
    (f) Vehicle and Equipment Operation. (1) The Contractor shall 
ensure that Contractor Personnel possess the required licenses to 
operate all vehicles or equipment necessary to perform the contract 
in the AO.
    (2) Contractor-owned or leased motor vehicles or equipment shall 
meet all requirements established by the combatant command and shall 
be maintained in a safe operating condition.
    (g) Passports, Visas and Customs. The Contractor is responsible 
for obtaining all passports, visas, and other documents necessary 
for Contractor Personnel to enter and exit any AO.
    (h) Purchasing Limited Resources. When the Combatant Command 
establishes a Commander-in-Chief Logistics Procurement Support Board 
(CLPSB), Joint Acquisition Review Board, or similar purchase review 
committee, the contractor will be required to coordinate local 
purchases of goods and services designated as limited, in accordance 
with instructions provided by the Administrative Contracting Officer 
or the Contracting Officer's designated representative.

(End of Clause)

[FR Doc. 03-29417 Filed 11-26-03; 8:45 am]
BILLING CODE 3710-08-P