[Federal Register Volume 73, Number 40 (Thursday, February 28, 2008)]
[Rules and Regulations]
[Pages 10943-10959]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-3364]


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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