[Federal Register Volume 78, Number 211 (Thursday, October 31, 2013)]
[Proposed Rules]
[Pages 65244-65248]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-25731]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 212, 225, 237, 242, and 252

RIN 0750-AI01


Defense Federal Acquisition Regulation Supplement: Contractor 
Personnel Supporting U.S. Armed Forces Deployed Outside the United 
States (DFARS Case 2013-D015)

AGENCY: Defense Acquisition Regulations System, Department of Defense 
(DoD).

ACTION: Proposed rule.

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SUMMARY: DoD is proposing to amend the Defense Federal Acquisition 
Regulation Supplement (DFARS) to align it with revisions to the DoD 
Instruction on operational contract support.

DATES: Comments on the proposed rule should be submitted in writing to 
the address shown below on or before

[[Page 65245]]

December 30, 2013, to be considered in the formation of a final rule.

ADDRESSES: Submit comments identified by DFARS Case 2013-D015, using 
any of the following methods:
    [cir] Regulations.gov: http://www.regulations.gov. Submit comments 
via the Federal eRulemaking portal by entering ``DFARS Case 2013-D015'' 
under the heading ``Enter keyword or ID'' and selecting ``Search.'' 
Select the link ``Submit a Comment'' that corresponds with ``DFARS Case 
2013-D015.'' Follow the instructions provided at the ``Submit a 
Comment'' screen. Please include your name, company name (if any), and 
``DFARS Case 2013-D015'' on your attached document.
    [cir] Email: [email protected]. Include DFARS Case 2013-D015 in the 
subject line of the message.
    [cir] Fax: 571-372-6094.
    [cir] Mail: Defense Acquisition Regulations System, Attn: Ms. 
Meredith Murphy, OUSD(AT&L)DPAP/DARS, Room 3B855, 3060 Defense 
Pentagon, Washington, DC 20301-3060.
    Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided. To 
confirm receipt of your comment(s), please check www.regulations.gov, 
approximately two to three days after submission to verify posting 
(except allow 30 days for posting of comments submitted by mail).

FOR FURTHER INFORMATION CONTACT: Ms. Meredith Murphy, Defense 
Acquisition Regulations System, OUSD (AT&L)DPAP/DARS, Room 3B855, 3060 
Defense Pentagon, Washington, DC 20301-3060. Telephone 571-372-6098; 
facsimile 571-372-6101.

SUPPLEMENTARY INFORMATION: 

I. Background

    DoD is proposing to amend the DFARS to revise and update the 
prescription and the clause at DFARS 252.225-7040, currently titled 
``Contractor Personnel Authorized to Accompany U.S. Armed Forces 
Deployed Outside the United States,'' to align it with the changes in 
applicability, terminology, and other revisions made by Department of 
Defense Instruction (DoDI) 3020.41, entitled ``Operational Contract 
Support (OCS).'' The DoDI was published as an interim rule for public 
comment and subsequently was published as a final rule on July 1, 2012.
    The revisions to DoDI 3020.41 establish policy, assign 
responsibilities, and provide procedures for OCS, including OCS program 
management, contract support integration, and integration of defense 
contractor personnel into contingency operations outside the United 
States. Additions to, and clarifications of, terminology aid in 
determining which groups qualify for different types of Government 
support and are based on improvements in practices and lessons learned 
in recent contingency operations.

II. Discussion and Analysis

    New definitions are proposed to be added to the clause at 252.225-
7040. These include ``contractors authorized to accompany the Force'' 
(CAAF), ``non-CAAF,'' and ``designated reception site.'' These 
definitions are considered important clarifications as to requirements, 
status, and entitlement to use facilities. One new element of the 
proposed rule is the statement at paragraph (b)(3) of the clause that, 
``when armed for personal protection, contractor personnel are only 
authorized to use force for personal protection.'' This would not be a 
new policy; rather, it would be a clear, concise statement of the 
existing policy.
    The new clause title is proposed to be ``Contractor Personnel 
Supporting U.S. Armed Forces Deployed Outside the United States,'' and 
the new clause prescription, at DFARS 225.7402-5(a), adds ``As directed 
by the Secretary of Defense'' to the list of circumstances in which the 
clause is applicable.
    The clause addresses at paragraph (c) the types of support 
available for CAAF personnel and the requirement to have a letter of 
authorization signed by the contracting officer prior to deployment for 
each CAAF. In the past, the provision of non-emergency medical and 
dental care to CAAF personnel has generated considerable confusion. The 
proposed revision to paragraph (c) would make it clear that only 
emergency medical and dental care will be provided and only when the 
CAAF individual is injured while supporting applicable operations. In 
certain cases, non-emergency care may be provided by field hospital 
staff, but the contractor will be billed for that non-emergency care.
    The predeployment requirements for CAAF personnel would be 
clarified in paragraph (e) of the clause. In the past, there was some 
ambiguity about which requirements could be fulfilled once the 
individual was in theater and which requirements had to be completed 
prior to deployment, i.e. during predeployment screening.
    The requirements for and use of personnel data are covered at 
paragraph (g) of the clause. Contractors are required to use the 
Synchronized Predeployment and Operational Tracker (SPOT) system to 
enter and maintain data on their CAAF and non-CAAF personnel (as 
designated by USD (AT&L) or the combatant commander) supporting 
deployed U.S. Armed Forces outside the United States. The purpose of 
SPOT is to provide the Combatant Commander with accurate, real-time 
information on all personnel within specified geographic combatant 
command operations areas. In the past, some contractors did not 
maintain current information on their personnel in SPOT. The proposed 
revisions to paragraph (e) of the clause would make a contractor's on-
going SPOT maintenance requirements clear and specific.

III. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
This is a significant regulatory action and, therefore, was subject to 
review under section 6(b) of E.O. 12866, Regulatory Planning and 
Review, dated September 30, 1993. This rule is not a major rule under 5 
U.S.C. 804.

IV. Regulatory Flexibility Act

    DoD does not expect this proposed rule to have a significant 
economic impact on a substantial number of small entities within the 
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., 
because it impacts only businesses providing direct support to U.S. 
Armed Forces that are deployed outside the United States. However, an 
initial regulatory flexibility analysis has been performed and is 
summarized as follows:
    This rule proposes to update the clause at DFARS 252.225-7040 and 
its prescription to align the DFARS with the changes in applicability, 
terminology, and other revisions made by Department of Defense 
Instruction (DoDI) 3020.41, entitled Operational Contract Support 
(OCS). The DoDI ``establishes policy, assigns responsibilities, and 
provides procedures for OCS, including OCS program management, contract 
support integration, and integration of defense contractor personnel 
into contingency

[[Page 65246]]

operations outside the United States . . .'' (DoDI 3020.41, section 
1.a.).
    The proposed rule will impact small businesses with personnel who 
provide direct support to U.S. Armed Forces personnel deployed outside 
the United States. Given the concerted effort by the United States to 
procure products and services from local vendors (see, e.g., sections 
841 and 842 of the National Defense Authorization Act for Fiscal Year 
2013, entitled ``Extension and Expansion of Authority to Acquire 
Products and Services Produced in Countries Along a Major Route of 
Supply to Afghanistan'' and ``Limitation on Authority to Acquire 
Products and Services Produced in Afghanistan,'' respectively.), the 
impact on U.S. small businesses should be minimal. DoD estimated, in 
its Paperwork Reduction Act estimate for SPOT, that up to 1,300 
companies ultimately could be supporting U.S. Armed Forces deployed 
outside the United States. Approximately 20 percent of these companies 
are non-U.S. firms (and therefore are not categorized as either small 
or large), and approximately 20 percent of the U.S. companies are small 
businesses, i.e. approximately 200 small businesses.
    However, for those small businesses that do have personnel deployed 
in support of U.S. Armed Forces deployed outside the United States, the 
recordkeeping and reporting requirements are minimal. The specific 
requirements are included in paragraph (g) of the clause at DFARS 
252.225-7040. The contractor is required to use the web-based 
Synchronized Predeployment and Operational Tracker (SPOT) system to 
enter and maintain the data for its CAAF and designated non-CAAF 
personnel supporting deployed U.S. Armed Forces outside the United 
States. The purpose of the SPOT system is to enable DoD to keep track 
of all persons deployed in contingency zones. The information must be 
entered in SPOT prior to deployment and must be updated during the 
performance period of the contract as necessary to maintain accurate, 
up-to-date information. Changes to status of individual contractor 
personnel relating to their in-theater arrival date and their duty 
location, to include closing out the deployment with their proper 
status (e.g. mission complete, killed, wounded) is annotated within the 
SPOT database.
    The rule does not duplicate, overlap, or conflict with any other 
Federal rules. The requirement to use the SPOT database is not new to 
this case. It has been in place for several years and is applied to all 
sizes of businesses that have personnel deployed in a contingency 
operation. The SPOT database can be accessed with a laptop and is user 
friendly to encourage real-time updates of the information provided.
    DoD invites comments from small business concerns and other 
interested parties on the expected impact of this rule on small 
entities.
    DoD will also consider comments from small entities concerning the 
existing regulations in subparts affected by this rule in accordance 
with 5 U.S.C. 610. Interested parties must submit such comments 
separately and should cite 5 U.S.C. 610 (DFARS Case 2013-D015), in 
correspondence.

V. Paperwork Reduction Act

    The rule contains information collection requirements that require 
the approval of the Office of Management and Budget under the Paperwork 
Reduction Act (44 U.S.C chapter 35; however, these changes to the DFARS 
do not impose additional information collection requirements to the 
paperwork burden previously approved under OMB Control Number 0704-
0460, entitled ``Synchronized Predeployment and Operational Tracker 
(SPOT) System,'' in accordance with the Paperwork Reduction Act (44 
U.S.C. chapter 35).

List of Subjects in 48 CFR Parts 212, 225, 237, 242, and 252

    Government procurement.

Manuel Quinones,
Editor, Defense Acquisition Regulations System.

    Therefore, DoD proposes to amend 48 CFR parts 212, 225, 237, 242, 
and 252 as follows:

0
1. The authority citation for 48 CFR parts 212, 225, 237, 242, and 252 
continues to read as follows:

    Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

PART 212--ACQUISITION OF COMMERCIAL ITEMS

0
2. Section 212.301 is amended by revising paragraph (f)(xxxix) to read 
as follows:


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

    (f) * * *
    (xxxix) Use the clause at 252.225-7040, Contractor Personnel 
Supporting U.S. Armed Forces Deployed Outside the United States, as 
prescribed in 225.7402-5(a).
* * * * *

PART 225--FOREIGN ACQUISITION


225.7402   [Amended]

0
3. Section 225.7402 heading is amended by removing the phrase 
``authorized to accompany'' and adding the word ``supporting'' in its 
place.
0
4. Section 225.7402-2 is revised to read as follows:


225.7402-2   Definition.

    Designated operational area is defined in the clause at 252.225-
7040. See PGI 225.7402-2 for additional information on designated 
operational areas.
0
4. Section 225.7402-5(a) is revised to read as follows:


225.7402-5   Contract clauses.

    (a) Use the clause at 252.225-7040, Contractor Personnel Supporting 
U.S. Armed Forces Deployed Outside the United States, instead 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, in solicitations and contracts, including 
solicitations and contracts using FAR part 12 procedures for the 
acquisition of commercial items, for performance in a designated 
operational area that authorize contractor personnel to support U.S. 
Armed Forces deployed outside the United States in--
    (1) Contingency operations;
    (2) Humanitarian assistance operations;
    (3) Other peace operations consistent with Joint Publication 3-
07.3;
    (4) Other military operations or military exercises, when 
designated by the combatant commander; or
    (5) As directed by the Secretary of Defense.
* * * * *

PART 237--SERVICE CONTRACTING


237.171-4   [Amended]

0
5. Section 237.171-4(a) is amended by removing ``a Force'' and adding 
``U.S. Armed Forces'' in its place.

PART 242--CONTRACT ADMINISTRATION AND AUDIT SERVICES


242.302   [Amended]

0
6. Section 242.302(S-72) is amended by removing the phrase ``Authorized 
to Accompany'' and adding ``Supporting'' in its place.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
7. Section 252.225-7040 is amended by--

[[Page 65247]]

0
a. Removing from the section heading the phrase ``Authorized to 
Accompany'' and adding ``Supporting'' in its place;
0
b. Removing from the clause title the phrase ``Authorized to 
Accompany'' and adding in its place ``Supporting;
0
c. Removing the clause date (FEB 2013) and adding ``(OCT 2013)''in its 
place;
0
d. Adding to paragraph (a), in alphabetical order, the definitions 
``contractors authorized to accompany the Force'', ``designated 
reception site'', and ``non-CAAF'';
0
e. Revising paragraph (b);
0
f. Amending paragraph (c)(1)(ii) by removing the word ``shall'' and 
adding ``will'' in its place;
0
g. Revising paragraph (c)(2)(i);
0
h. Amending paragraph (c)(2)(iii) by removing the phrase ``unless 
specified elsewhere in this contract'';
0
i. Removing paragraph (c)(3);
0
j. Redesignating paragraph (c)(4) as (c)(3) and adding a new paragraph 
(c)(4);
0
k. Amending paragraph (d)(1) introductory text by removing the phrase 
``authorized to accompany'' and adding ``supporting'' in its place;
0
l. Amending paragraph (d)(3) introductory text by removing the phrase 
``contractor employees accompanying'' and adding ``CAAF supporting'' in 
its place;
0
m. Amending paragraph (e)(1) introductory text by removing the phrase 
``personnel authorized to accompany U.S. Armed Forces'' and adding 
``CAAF'' in its place;
0
n. Revising paragraph (e)(1)(ii);
0
o. Amending paragraph (e)(1)(iii) by removing the last sentence in the 
paragraph and adding in its place ``Contractor personnel shall return 
all U.S. Government issued identification, to include the Common Access 
Card, to appropriate U.S. Government authorities at the end of their 
deployment.'';
0
p. Amending paragraph (e)(1)(iv) by removing ``Contractor personnel'' 
and adding ``For this purpose, CAAF'' in its place and adding the word 
``contractor'' after the word ``non-DoD'';
0
q. Adding paragraphs (e)(2)(v) and (vi);
0
r. Amending paragraph (f) introductory text by removing the words 
``Deployed Contractor'' and adding ``(CAAF)'' in its place;
0
s. Amending paragraph (f)(3) by--
0
i. Removing the word ``Joint'' and adding ``designated'' in its place;
0
ii. Removing the words ``Center (JRC)'' and adding ``site (DRS)'' in 
its place; and
0
iii. Removing ``JRC'' and adding ``DRS'' in its place.
0
t. Revising paragraph (g);
0
u. Revising paragraph (h);
0
v. Amending paragraph (j)--
0
i. In paragraph (j)(1), by removing ``authorized to carry weapons, the 
request'' and adding ``authorized to carry weapons for personal 
protection, the request'' in its place, and removing ``, paragraph 
6.3.4.1 or, if the contract is for security services, paragraph 
6.3.5.3'';
0
ii. By adding paragraphs (j)(3)(iv) and (v);
0
w. Revising paragraph (o); and
0
x. Revising paragraph (q).
    The revisions and additions read as follows:


252.225-7040  Contractor Personnel Supporting U.S. Armed Forces 
Deployed Outside the United States.

* * * * *
    (a) * * *

    Contractors authorized to accompany the Force, or CAAF, means 
contractor personnel, including all tiers of subcontractor 
personnel, who are authorized to accompany U.S. Armed Forces in 
applicable operations and have been afforded CAAF status through a 
letter of authorization. CAAF generally include all U.S. citizen and 
third-country national employees not normally residing within the 
operational area whose area of performance is in the direct vicinity 
of U.S. Armed Forces and who routinely are co-located with the U.S. 
Armed Forces (especially in non-permissive environments). Personnel 
co-located with U.S. Armed Forces shall be afforded CAAF status 
through a letter of authorization. In some cases, Combatant 
Commander subordinate commanders may designate mission-essential 
host nation (HN) or local national (LN) contractor employees (e.g., 
interpreters) as CAAF. CAAF includes contractors previously 
identified as contractors deploying with the U.S. Armed Forces. CAAF 
status does not apply to contractor personnel in support of 
applicable operations within the boundaries and territories of the 
United States.
* * * * *
    Designated reception site means the designated place responsible 
for the reception, staging, integration, and onward movement of 
contractors deploying during a contingency. The designated reception 
site includes assigned joint reception centers and other Service or 
private reception sites.
* * * * *
    Non-CAAF means personnel who are not designated as CAAF, such as 
local national (LN) employees and non-LN employees who are permanent 
residents in the operational area or third-country nationals not 
routinely residing with U.S. Armed Forces (and third-country 
national expatriates who are permanent residents in the operational 
area) who perform support functions away from the close proximity 
of, and do not reside with, U.S. Armed Forces. Government-furnished 
support to non-CAAF is typically limited to force protection, 
emergency medical care, and basic human needs (e.g., bottled water, 
latrine facilities, security, and food when necessary) when 
performing their jobs in the direct vicinity of U.S. Armed Forces. 
Non-CAAF status does not apply to contractor personnel in support of 
applicable operations within the boundaries and territories of the 
United States.
* * * * *
    (b) General. (1) This clause applies when Contractor personnel 
performing in a designated operational area are supporting U.S. 
Armed Forces deployed outside the United States in--
    (i) Contingency operations;
    (ii) Humanitarian assistance operations;
    (iii) Other peace operations;
    (iv) Other military operations or military exercises, when 
designated by the Combatant Commander; or
    (v) As directed by the Secretary of Defense.
    (2) Contract performance in support of U.S. Armed Forces 
deployed outside the United States 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) When authorized in accordance with paragraph (j) of this 
clause to carry arms for personal protection, Contractor personnel 
are only authorized to use force for individual defense.
    (4) Unless immune from host nation jurisdiction by virtue of an 
international agreement or international law, inappropriate use of 
force by contractor personnel authorized to accompany the U.S. Armed 
Forces can subject such personnel to United States or host nation 
prosecution and civil liability (see paragraphs (d) and (j)(3) of 
this clause).
    (5) Service performed by Contractor personnel subject to this 
clause is not active duty or service under 38 U.S.C. 106 note.
    (c) * * *
    (2)(i) Generally, CAAF will be afforded emergency medical and 
dental care if injured while supporting applicable operations. 
Additionally, non-CAAF employees who are injured while in the 
vicinity of U.S. Armed Forces will normally receive emergency 
medical and dental care. Emergency medical and dental care includes 
medical care situations in which life, limb, or eyesight is 
jeopardized. Examples of emergency medical and dental care include 
examination and initial treatment of victims of sexual assault; 
refills of prescriptions for life-dependent drugs; repair of broken 
bones, lacerations, infections; and traumatic injuries to the 
dentition. Hospitalization will be limited to stabilization and 
short-term medical treatment with an emphasis on return to duty or 
placement in the patient movement system.
* * * * *
    (4) Unless specified elsewhere in this contract, the Contractor 
is responsible for all other support required for its personnel 
engaged in the designated operational area under this contract.
* * * * *
    (e) * * *
    (1) * * *
    (ii) All CAAF deploying in support of an applicable operation 
are medically, dentally, and psychologically fit for deployment and

[[Page 65248]]

performance of their contracted duties. All CAAF must meet the 
minimum medical screening requirements, including theater-specific 
medical qualifications as established by the geographic Combatant 
Commander (as posted to the Geographic Combatant Commander's Web 
site or other venue) and have received all required immunizations as 
specified in the contract. During predeployment processing, the 
Government will provide, at no cost to the Contractor, any military-
specific immunizations and/or medications not available to the 
general public. All other immunizations must be obtained prior to 
arrival at the deployment center. CAAF and selected non-CAAF must 
bring to the operational area a current copy of the Public Health 
Service Form 791, ``International Certificate of Vaccination.''
* * * * *
    (2) * * *
    (v) Such employees are required to report offenses alleged to 
have been committed by or against Contractor personnel to 
appropriate investigative authorities.
    (vi) Such employees will be provided victim and witness 
protection and assistance.
* * * * *
    (g) Personnel data. (1) The Contractor shall use the 
Synchronized Predeployment and Operational Tracker (SPOT) web-based 
system, to enter and maintain the data for all CAAF and, as 
designated by USD(AT&L) or the Combatant Commander, non-CAAF 
personnel supporting U.S. Armed Forces deployed outside the United 
States as specified in paragraph (b)(1) of this clause.
    (2) The Contractor shall enter the required information about 
their contractor personnel prior to deployment and shall continue to 
use the SPOT web-based system at https://spot.altess.army.mil/privacy.aspx to maintain accurate, up-to-date information throughout 
the deployment for all Contractor personnel. Changes to status of 
individual Contractor personnel relating to their in-theater arrival 
date and their duty location, to include closing out the deployment 
with their proper status (e.g., mission complete, killed, wounded) 
shall be annotated within the SPOT database in accordance with the 
timelines established in the SPOT business rules.
    (h) Contractor personnel. (1) The Contracting Officer may direct 
the Contractor, at its own expense, to remove and replace any 
Contractor personnel who jeopardize or interfere with mission 
accomplishment or 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 the Termination for 
Default clause.
    (2) The Contractor shall identify all personnel who occupy a 
position that the Contracting Officer has designated as mission 
essential and ensure the continuity of essential Contractor services 
during designated operations.
    (3) The Contractor shall ensure that Contractor personnel follow 
the guidance at paragraph (e)(2)(v) of this clause and any specific 
Combatant Commander guidance on reporting offenses alleged to have 
been committed by or against Contractor personnel to appropriate 
investigative authorities.
* * * * *
    (j) * * *
    (3) * * *
    (iv) Comply with applicable Combatant Commander and local 
commander force-protection policies.
    (v) Understand that the inappropriate use of force could subject 
them to U.S. or host-nation prosecution and civil liability.
* * * * *
    (o) Mortuary affairs. Contractor personnel who die while in 
support of the U.S. Armed Forces shall be covered by the DoD 
mortuary affairs program as described in DoD Directive 1300.22, 
Mortuary Affairs Policy, and DoD Instruction 3020.41, Operational 
Contractor Support.
* * * * *
    (q) Subcontracts. The Contractor shall incorporate the substance 
of this clause, including this paragraph (q), in all subcontracts 
when subcontractor personnel are supporting U.S. Armed Forces 
deployed outside the United States in--
    (1) Contingency operations;
    (2) Humanitarian assistance operations;
    (3) Other peace operations;
    (4) Other military operations or military exercises, when 
designated by the Combatant Commander; or
    (5) As directed by the Secretary of Defense.

(End of clause)

[FR Doc. 2013-25731 Filed 10-30-13; 8:45 am]
BILLING CODE 5001-06-P