[Federal Register Volume 69, Number 56 (Tuesday, March 23, 2004)]
[Proposed Rules]
[Pages 13500-13503]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-6236]


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DEPARTMENT OF DEFENSE

48 CFR Parts 207, 212, 225, and 252

[DFARS Case 2003-D087]


Defense Federal Acquisition Regulation Supplement; Contractors 
Accompanying a Force Deployed

AGENCY: Department of Defense (DoD).

ACTION: Proposed rule with request for comments.

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SUMMARY: DoD is proposing to amend the Defense Federal Acquisition 
Regulation Supplement (DFARS) to address issues related to contract 
performance outside the United States. The proposed rule contains a 
clause for use in contracts that require contractor employees to 
accompany a force engaged in contingency, humanitarian, peacekeeping, 
or combat operations.

DATES: Comments on the proposed rule should be submitted in writing to 
the address shown below on or before May 24, 2004, to be considered in 
the formation of the final rule.

ADDRESSES: Respondents may submit comments directly via the Internet at 
http://emissary.acq.osd.mil/dar/dfars.nsf/pubcomm. As an alternative, 
respondents may e-mail comments to: [email protected]. Please cite DFARS 
Case 2003-D087 in the subject line of e-mailed comments.
    Respondents that cannot submit comments using either of the above 
methods may submit comments to: Defense Acquisition Regulations 
Council, Attn: Ms. Amy Williams, OUSD(AT&L)DPAP(DAR), IMD 3C132, 3062 
Defense Pentagon, Washington, DC 20301-3062; facsimile (703) 602-0350. 
Please cite DFARS Case 2003-D087.
    At the end of the comment period, interested parties may view 
public comments on the Internet at http://emissary.acq.osd.mil/dar/dfars.nsf.

FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, (703) 602-0328.

SUPPLEMENTARY INFORMATION: 

A. Background

    This rule proposes amendments to the DFARS to add policy relating 
to contracts that require contractor employees to accompany a force 
engaged in contingency, humanitarian, peacekeeping, or combat 
operations outside the United States. The proposed changes will enable 
the uniform treatment of contractors that accompany a deployed force, 
and will enable combatant commanders to rapidly adjust contract 
requirements in response to changing conditions on the battlefield.
    In addition, as a result of the DFARS Transformation initiative, 
this rule proposes to move text from DFARS 225.802-70 to the new DFARS 
companion resource, Procedures, Guidance, and Information (PGI). A 
proposed rule describing the purpose and structure of PGI was published 
at 69 FR 8145 on February 23, 2004. Additional information on the DFARS 
Transformation initiative is available at http://www.acq.osd.mil/dpap/dfars/transf.htm. A draft version of the PGI text referenced in this 
proposed rule is available at http://www.acq.osd.mil/dpap/dfars/changes.htm.
    DoD particularly seeks comment on the following aspects of the 
proposed rule:
     Paragraphs (p) and (q) of the proposed clause, 
which permit the Combatant Commander to provide direction to the 
contractor.
     The authority and liability of the Government 
for providing support services, such as medical or legal services, to 
contractor personnel (section 225.7402-1 of the proposed rule).
    This rule was not subject to Office of Management and Budget review 
under Executive Order 12866, dated September 30, 1993.

B. Regulatory Flexibility Act

    DoD 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 contracts that require contractor employees to 
accompany a force engaged in contingency, humanitarian, peacekeeping, 
or combat operations outside the United States. Therefore, DoD has not 
performed an initial regulatory flexibility analysis. DoD invites 
comments from small businesses and other interested parties. DoD also 
will consider comments from small entities concerning the affected 
DFARS subparts in accordance with 5 U.S.C. 610. Such comments should be 
submitted separately and should cite DFARS Case 2003-D087.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the rule does 
not impose any new information collection requirements that require the 
approval of the Office of Management and Budget under 44 U.S.C. 3501, 
et seq. Although the proposed clause requires contractors to maintain 
(1) a current plan on file showing how the contractor would replace 
employees who are unavailable for deployment or who need to be replaced 
during deployment, and (2) a current list of all employees in the area 
of operations in support of the military force, DoD believes that these 
requirements are usual and customary and do not exceed what a 
contractor would maintain in the normal course of business. DoD invites 
comment on whether these requirements constitute an information 
collection requirement that imposes a burden as defined at 5 CFR 
1320.3(b).

List of Subjects in 48 CFR Parts 207, 212, 225, and 252

    Government procurement.

Michele P. Peterson,
Executive Editor, Defense Acquisition Regulations Council.
    Therefore, DoD proposes to amend 48 CFR Parts 207, 212, 225, and 
252 as follows:
    1. The authority citation for 48 CFR Parts 207, 212, 225, and 252 
continues to read as follows:

    Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.

PART 207--ACQUISITION PLANNING

    2. Section 207.105 is amended by adding paragraph (b)(19)(E) to 
read as follows:


207.105  Contents of written acquisition plans.

* * * * *
    (b) * * *
    (19) * * *
    (E) Ensure that the requirements of DoD Instruction 3020.37, 
Continuation of Essential DoD Contractor Services During Crises, are 
addressed.

PART 212--ACQUISITION OF COMMERCIAL ITEMS

    3. Section 212.301 is amended by adding paragraph (f)(vii) to read 
as follows:

[[Page 13501]]

212.301  Solicitation provisions and contract clauses for the 
acquisition of commercial items.

* * * * *
    (f) * * *
    (vii) Use the clause at 252.225-70XX, Contractors Accompanying a 
Force Deployed for Contingency, Humanitarian, Peacekeeping, or Combat 
Operations, as prescribed in 225.7402-2.

PART 225--FOREIGN ACQUISITION

    4. Section 225.802-70 is revised to read as follows:


225.802-70  Contracts for performance outside the United States and 
Canada.

    Follow the procedures at PGI 225.802-70 when placing a contract 
requiring performance outside the United States and Canada. Also see 
Subpart 225.74, Defense Contractors Outside the United States.
    5. Subpart 225.74 is revised to read as follows:

Subpart 225.74--Defense Contractors Outside the United States

Sec.
225.7401 General.
225.7402 Contractors accompanying a force deployed for contingency, 
humanitarian, peacekeeping, or combat operations.
225.7402-1 Government support of contractor personnel accompanying a 
force.
225.7402-2 Contract clause.
225.7403 Antiterrorism/force protection.
225.7403-1 General.
225.7403-2 Contract clause.


225.7401  General.

    (a) If the acquisition requires performance of work in a foreign 
country by U.S. personnel or a third country contractor, follow the 
procedures at PGI 225.7401(a).
    (b) For work performed in Germany, eligibility for logistics 
support or base privileges of contractor employees is governed by U.S.-
German bilateral agreements. Follow the procedures in Army in Europe 
Regulation 715-9, available at http://www.chrma.hqusareur.army.mil/docper.


225.7402  Contractors accompanying a force deployed for contingency, 
humanitarian, peacekeeping, or combat operations.


225.7402-1  Government support of contractor personnel accompanying a 
force.

    (a) Contractors shall generally provide their own in-country 
support for their personnel.
    (b) If the use of Government-provided support is to be authorized 
or required when the contractor is accompanying a force, the exact 
support to be authorized or required shall be set forth in each 
contract or in the operation order of the combatant commander. For 
examples of such support, see PGI 225.7402-1(b).


225.7402-2  Contract clause.

    Use the clause at 252.225-70XX, Contractors Accompanying a Force 
Deployed for Contingency, Humanitarian, Peacekeeping, or Combat 
Operations, in solicitation and contracts for services, construction, 
or supplies, when contract performance requires that contractor 
employees accompany, or be available to accompany, a force engaged in 
contingency, humanitarian, peacekeeping, or combat operations outside 
the United States.


225.7403  Antiterrorism/force protection.


225.7403-1  General.

    Information and guidance pertaining to DoD antiterrorism/force 
protection policy for contracts that require performance or travel 
outside the United States can be obtained from the following offices:
    (a) For Navy contracts: Naval Criminal Investigative Service 
(NCIS), Code 24; telephone, DSN 228-9113 or commercial (202) 433-9113.
    (b) For Army contracts: HQDA (DAMO-ODL)/ODCSOP; telephone, DSN 225-
8491 or commercial (703) 695-8491.
    (c) For Marine Corps contracts: CMC Code POS-10; telephone, DSN 
224-4177 or commercial (703) 614-4177.
    (d) For Air Force contracts: HQ AFSFC/SFPA; telephone, DSN 945-
7035/36 or commercial (210) 925-7035/36.
    (e) For Combatant Command contracts: The appropriate Antiterrorism 
Force Protection Office at the Command Headquarters.
    (f) For defense agency contracts: The appropriate agency security 
office.
    (g) For additional information: Assistant Secretary of Defense for 
Special Operations and Low Intensity Conflict, ASD(SOLIC); telephone, 
DSN 255-0044 or commercial (703) 695-0044.


225.7403-2  Contract clause.

    Use the clause at 252.225-7043, Antiterrorism/Force Protection 
Policy for Defense Contractors Outside the United States, in 
solicitations and contracts that require performance or travel outside 
the United States, except for contracts with--
    (a) Foreign governments;
    (b) Representatives of foreign governments; or
    (c) Foreign corporations wholly owned by foreign governments.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    6. Section 252.225-70XX is added to read as follows:


252.225-70XX  Contractors Accompanying a Force Deployed for 
Contingency, Humanitarian, Peacekeeping, or Combat Operations.

    As prescribed in 225.7402-2, use the following clause:

Contractors Accompanying a Force Deployed for Contingency, 
Humanitarian, Peacekeeping, or Combat Operations (XXX 2004)

    (a) Definitions. As used in this clause--
    Combatant Commander is the commander of a unified or specified 
combatant command established pursuant to 10 U.S.C. 161, or any 
subordinate commander given authority by that Combatant Commander to 
issue direction to contractors in a specified geographical area or 
for a specific functional area.
    Contingency operation means a military operation that--
    (1) Is designated by the Secretary of Defense as an operation in 
which members of the armed forces are or may become involved in 
military actions, operations, or hostilities against an enemy of the 
United States or against an opposing military force; or
    (2) Results in the call or order to, or retention on, active 
duty of members of the uniformed services under section 688, 
12301(a), 12302, 12304, 12305, or 12406 of 10 U.S.C., chapter 15 of 
10 U.S.C., or any other provision of law during a war or during a 
national emergency declared by the President or Congress (10 U.S.C. 
101(a)(13)).
    Humanitarian or peacekeeping operation means a military 
operation in support of the provision of humanitarian or foreign 
disaster assistance or in support of a peacekeeping operation under 
chapter VI or VII of the Charter of the United Nations. The term 
does not include routine training, force rotation, or stationing (10 
U.S.C. 2302(8) and 41 U.S.C. 259(d)).
    (b) General. (1) Performance of this contract may require 
deployment of contractor personnel in support of deployed military 
forces involved in humanitarian, peacekeeping, contingency, or 
combat operations.
    (2) Contract performance in support of such forces is inherently 
dangerous. The Contractor accepts the risks associated with required 
contract performance in such operations.
    (c) Support. (1) Unless specified elsewhere in the contract or 
as provided in paragraph (c)(2) of this clause, the Contractor is 
responsible for all support required for contractor personnel 
engaged in this contract.
    (2) The Government at its sole discretion may authorize or may 
require the use of certain Government-provided logistical or in-
country support.

[[Page 13502]]

    (d) Compliance with laws and regulations. The Contractor shall 
comply with and ensure that its employees are familiar with and 
comply with all--
    (1) United States, host country, and local laws;
    (2) Treaties and international agreements (e.g., Status of 
Forces Agreements, Host Nation Support Agreements, and Defense 
Technical Agreements);
    (3) United States regulations, directives, instructions, 
policies, and procedures that are applicable to the Contractor in 
the area of operations;
    (4) Orders, directives, and instructions issued by the Combatant 
Commander relating to force protection, security, health, safety, or 
relations and interaction with local nationals; and
    (5) The Uniform Code of Military Justice where applicable.
    (e) Contractor personnel. (1) The Contracting Officer may direct 
the Contractor to remove and replace any contractor personnel who 
jeopardize or interfere with mission accomplishment or who fail to 
comply with or violate applicable requirements under this clause.
    (2) The Contractor shall have a current plan on file showing how 
the Contractor would replace employees who are unavailable for 
deployment or who need to be replaced during deployment. The plan 
shall identify all personnel who are subject to military 
mobilization and shall detail how the position would be filled if 
the individual were mobilized. In addition, the plan shall identify 
all personnel who occupy a position that is designated as mission 
essential by the Contracting Officer. This plan shall be available 
for review by the Contracting Officer's representative.
    (f) Personnel data. (1) The Contractor shall maintain with the 
designated Government official a current list of all employees in 
the area of operations in support of the military force. The 
Contracting Officer will designate the Government official to 
receive this data and the appropriate automated system(s) to use for 
this effort.
    (2) The Contractor shall ensure that all employees on this list 
have at all times a current DD Form 93, Record of Emergency Data 
Card, on file with both the Contractor and the designated Government 
official.
    (g) Pre-deployment requirements. The Contractor shall ensure 
that the following requirements are met prior to deploying an 
employee in support of deployed forces. Specific requirements for 
each category may be set forth in the statement of work or contract 
annex to the operation order. The Contractor shall ensure that--
    (1) All applicable specified security and background checks are 
completed;
    (2) All deploying personnel are medically and physically fit to 
endure the rigors of deployment in support of military operations 
and have received all required vaccinations;
    (3) Deploying personnel possess the required licenses to operate 
all vehicles or equipment necessary to perform the contract in the 
theater of operations;
    (4) Deploying personnel have all necessary passports, visas, and 
other documents required for contractor personnel to enter and exit 
an area of operations; and
    (5) Country and theater clearance is obtained for personnel.
    (h) Military clothing and protective equipment. (1) Contractor 
personnel accompanying the force are prohibited from wearing 
military clothing unless specifically authorized by the Combatant 
Commander. However, contractor personnel may wear specific items 
required for safety and security such as ballistic or nuclear, 
biological, or chemical protective clothing.
    (2) The CONUS Replacement Center, or the theater commander, at 
his discretion, may provide to the contractor personnel military-
unique organizational clothing and individual equipment (OCIE) and 
training to ensure contractor personnel security and safety.
    (3) In accordance with Government-Furnished Property clauses 
specified elsewhere in this contract, the Contractor shall ensure 
that all issued OCIE is returned to the point of issue.
    (i) Weapons. (1) Contractor personnel may not possess privately 
owned firearms when in support of deployed forces unless 
specifically authorized by the Combatant Commander. The Contractor 
shall ensure employee compliance with this requirement.
    (2) If the Combatant Commander authorizes the carrying of 
firearms, the military may issue weapons and ammunition to the 
Contractor for issuance to specified contractor employees. The 
Contractor shall ensure that its personnel who receive weapons are 
adequately trained, are not barred from possession of a firearm by 
18 U.S.C. 922(d)(9) or (g)(9), and adhere to all guidance and orders 
issued by the Combatant Commander regarding possession, use, safety, 
and accountability of weapons and ammunition. Upon redeployment or 
revocation by the Combatant Commander of a contractor's 
authorization to issue firearms, the Contractor shall ensure that 
all Government-issued weapons and unexpended ammunition are returned 
as directed by the Contracting Officer.
    (j) Next of kin notification. The Contractor shall be 
responsible for in-person notification of the employee designated 
next of kin of a deployed employee in the following circumstances:
    (1) Death of the employee.
    (2) An injury to the employee requiring evacuation.
    (3) The employee is missing.
    (4) The employee is captured.
    (k) Evacuation of bodies. In the event of the death of a 
contractor employee, the Contractor is responsible for the 
evacuation of body from the point of identification to the location 
specified by the employee or next of kin, as applicable.
    (l) Evacuation. If the Combatant Commander orders a mandatory 
evacuation of some or all personnel, the Government will provide 
assistance to the extent available to United States and third 
country employees. In the event of a non-mandatory evacuation order, 
the Contractor shall maintain personnel on location sufficient to 
meet contractual obligations under this contract.
    (m) Insurance. The Contractor is responsible for all issues 
dealing with exclusions contained in an employee's personal 
insurance policies that may be provided through its compensation 
package as negotiated with that employee.
    (n) Processing and departure points. The Contractor and its 
employees will use a Government, contractor, or military unit 
processing and point of departure and transportation mode as 
directed by the Contracting Officer or the Contracting Officer's 
representative.
    (o) Purchase of scarce commodities. If the Combatant Commander 
has established an organization for an area of operations whose 
function is to determine that certain items are scarce commodities, 
the Contractor shall obtain the approval of that organization prior 
to procuring the item(s).
    (p) Changes. (1) When the Contractor, in order to meet a 
contractual obligation, must accompany or travel to an area where a 
force is deployed for contingency, humanitarian, peacekeeping, or 
combat operations, the Contractor shall comply with instructions of 
the Combatant Commander relating to all transportation, logistical, 
and support requirements.
    (2) If there is a conflict between the instructions issued by 
the Combatant Commander under paragraph (p)(1) of this clause and 
the existing terms of the contract, the instructions issued by the 
Combatant Commander take precedence over any existing terms.
    (3) The Contractor may submit a request for equitable adjustment 
for any additional effort required or any loss of contractor-owned 
equipment occasioned by such direction.
    (q) Changes in emergencies. (1) Normally, the Contracting 
Officer or the Contracting Officer's representative provides 
direction to the Contractor, and the Contractor provides direction 
to its employees. However, when the Contractor is accompanying the 
force outside the United States, if the Contracting Officer or the 
Contracting Officer's representative is not available and emergency 
action is required because of enemy or terrorist activity or natural 
disaster that causes an immediate possibility of death or serious 
injury to contractor personnel or military personnel, the ranking 
military commander in the immediate area of operations may direct 
the Contractor or contractor employee to undertake any action as 
long as those actions do not require the contractor employee to 
engage in armed conflict with an enemy force.
    (2) The Contractor may submit a request for equitable adjustment 
for any additional effort required or any loss of contractor-owned 
equipment occasioned by such direction.
    (r) Subcontracts. The Contractor shall incorporate the substance 
of this clause, including this paragraph (r), in all subcontracts 
that require subcontractor employees to accompany or to be available 
to accompany a force engaged in contingency, humanitarian, 
peacekeeping or combat operations outside the United States.

(End of clause)


252.225-7043  [Amended]

    7. Section 252.225-7043 is amended in the introductory text by 
removing

[[Page 13503]]

``225.7402'' and adding in its place ``225.7403-2''.

[FR Doc. 04-6236 Filed 3-22-04; 8:45 am]
BILLING CODE 5001-08-P