[Federal Register Volume 86, Number 4 (Thursday, January 7, 2021)]
[Proposed Rules]
[Pages 1063-1080]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-27694]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 158
[Docket ID: DOD-2020-OS-0015]
RIN 0790-AK81
Operational Contract Support (OCS) Outside the United States
AGENCY: Office of the Under Secretary of Defense for Acquisition and
Sustainment, Department of Defense (DoD).
ACTION: Proposed rule.
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SUMMARY: The DoD is issuing this rule to update the policies and
procedures for operational contract support (OCS) outside the United
States. These changes include broadening the range of applicable
operational scenarios, eliminating content internal to the Department,
and making updates to comply with law and policy. Changes include
designating contractor personnel as part of the DoD total force,
incorporating requirements for accountability and reporting, and
clarifying responsibilities. Through these updates, the Department will
also address open recommendations from the Government Accountability
Office (GAO). OCS is a segment of the GAO High Risk Area of DoD
Contract Management and while the latest update in March 2019
acknowledged progress, GAO cited the need to revise and reissue
guidance to address several open recommendations.
DATES: Comments must be received by March 8, 2021.
ADDRESSES: You may submit comments, identified by docket number and/or
Regulatory Information Number (RIN) number and title, by any of the
following methods:
Federal Rulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: DoD cannot receive written comments at this time due
to the COVID-19 pandemic. Comments should be sent electronically to the
docket listed above.
Instructions: All submissions received must include the agency name
and docket number or RIN for this Federal Register document. The
general policy for comments and other submissions from members of the
public is to make these submissions available for public viewing on the
internet at http://www.regulations.gov as they are received without
change, including any personal identifiers or contact information.
FOR FURTHER INFORMATION CONTACT: Ms. Donna M. Livingston, 703-692-3032,
[email protected].
SUPPLEMENTARY INFORMATION:
I. Executive Summary
A. Purpose of the Rule
The Joint Force relies on contracted support in nearly every
mission and operational setting. Operational Contract Support (OCS) is
how the Department plans for and integrates contracted capabilities and
associated contractor personnel providing support to operations within
a designated geographic area. Since 2007, the Department has been
heavily focused on better oversight, management, and accounting of
contractors supporting U.S. military operations. Concurrently, there
has been increasing demand from commanders for more visibility of
contractor personnel. Successfully planning for, procuring, and
integrating contracted support requires that commanders have a full
understanding of what contracted support is needed and when; how
requirements can be optimized and executed; and how the Department
includes contracted support as part of the total force. The existing
part describes, in detail, the specific DoD policy, responsibilities,
and procedures that enable and substantiate OCS and enable both the DoD
and its commercial partners to plan for contractor support when
operating with U.S. Armed Forces in applicable operations. Contractors
are currently required to load their employees' information in the
Synchronized Pre-deployment Operational Tracker--Enterprise System
(SPOT-ES) when an employee deploys under a contract to support U.S.
military operations overseas, and this revision neither increases nor
decreases the burden of this requirement. The changes resulting from
the revised rule increase transparency of new policies and better
inform the DoD's commercial partners.
B. Background
Operational contract support was born in the aftermath of
significant reporting on DoD acquisition and contracting operations in
Iraq and Afghanistan, including the 2008 ``Commission on Army
Acquisition and Program Management in Expeditionary Operations'' and
the 2011 ``Commission on Wartime Contracting in Iraq and Afghanistan.''
The Commission on Wartime Contracting in Iraq and Afghanistan published
findings that identified deficiencies related to contract management
and oversight that required DoD's attention. As a result, the DoD has
invested heavily in efforts to address these findings and enhance
oversight, better define contract requirements, and improve the
visibility and accounting of contractors supporting U.S. operations
overseas. There has been persistent scrutiny of the DoD's progress to
close these deficiencies, namely by the GAO. The GAO has reviewed the
Departments' progress on OCS on multiple occasions, and classified OCS
as a segment within the DoD Contract Management High Risk Area. In the
last report (GAO-19-157SP) published in March 2019 (available at
https://www.gao.gov/products/GAO-19-157SP), GAO recognized the progress
made on OCS and affirmed that it could remove its high-risk status.
Removal could come quickly once the DoD successfully completes the few
remaining GAO recommendations. By implementing the GAO recommendations,
updating internal policies especially DoD Instruction 3020.41
``Operational
[[Page 1064]]
Contract Support'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/302041p.pdf), and revising this CFR part,
the DoD will address the vital need for greater efficiency and
accountability. Improved policy and guidance will foster an environment
focused on operational planning of contracted support to operations and
improved readiness, and will result in cost savings by reducing the
potential for waste, fraud, and abuse.
C. Summary of Major Provisions
This proposed rule: (1) Broadens the types of operations when
contracted support may be employed, beyond contingency operations; (2)
describes and clarifies contractors' responsibilities related to
theater admission requirements for their personnel deploying in support
of operations outside the United States; (3) clarifies contractors'
responsibilities to provide personnel who meet specific medical and
dental fitness standards; (4) details the services the U.S. Government
is authorized to provide to contractors; and (5) removes all internally
facing information to promote efficiency and streamline communication
with the public.
To address GAO recommendations to improve the ability to track
contracts and contractor personnel in contingency and other operations
and to help ensure that DoD possesses the capability to collect and
report statutorily required information and to clarify responsibilities
and procedures, Sec. 158.5(g) was updated to address SPOT minimum
reporting requirements, system requirements, and references to the SPOT
business rules were included which include area specific requirements.
D. Legal Authority
The legal authority for this rule is found in Section 861,
Memorandum of Understanding on Matters Relating to Contracting, of the
National Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110-
181), and Section 854, Additional Contractor Requirements and
Responsibilities Relating to Alleged Crimes By or Against Contractor
Personnel in Iraq and Afghanistan, of the Duncan Hunter National
Defense Authorization Act for Fiscal Year 2009 (Pub. L. 110-417).
II. Regulatory History
An interim final rule for this part was published on December 29,
2011 (76 FR 81807). The DoD adopted the interim final rule as a final
rule without change on December 3, 2013 (78 FR 72573). The 2011 rule
action procedurally closed gaps that existed in planning, oversight,
and management of DoD contractors supporting contingency operations.
The rule was necessary to address legislative mandates, remove
confusion with other policies, and better reflect the practices and
procedures in place at that time. The rule was crucial at the time due
to the sustained employment of a large number of contractors in the
U.S. Central Command area of responsibility; the importance of
contractor oversight in support of counter-insurgency operations in
Afghanistan; and the requirement to manage contractors effectively
during the withdrawal of U.S. forces from Iraq in 2011.
III. Regulatory Analysis
A. Regulatory Planning and Review
a. Executive Orders
Executive Order 12866, ``Regulatory Planning and Review,'' and
Executive Order 13563, ``Improving Regulation and Regulatory Review''
Executive Orders 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, distribute impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This rule has been designated a ``not significant
regulatory action'' and has been determined not to be economically
significant under section 3(f) of Executive Order 12866.
Executive Order 13771, ``Reducing Regulation and Controlling Regulatory
Costs''
This rule is not significant under Executive Order 12866;
therefore, it is not subject to the requirements of Executive Order
13771.
b. Summary
This rule broadens the range of operations in which contracted
support may be employed; updates requirements for the development of
contractor oversight plans; increases visibility and accountability;
reinforces requirements for adequate military personnel necessary to
execute contract oversight; and describes U.S. Government standards for
medical care available to deployed contractor personnel, when
authorized. It also updates policy resulting from changes in law and
policy. Lastly, the rule has been streamlined to show only information
relevant to the public and removes internally facing responsibilities
and procedures.
c. Affected Population
The existing rule provides information relevant to contractors and
their personnel that may provide contracted support to the DoD during
applicable operations outside the United States. The following
populations are expected to continue to be stakeholders in the content
of the revised rule:
[ssquf] Contractor personnel--Provides information and describes
the requirements the DoD imposes on employees of commercial industry
partners who may be employed in support of DoD operations conducted
outside the United States.
[ssquf] CCompanies or organizations--Provides information for
commercial industry partners to understand how contractor personnel are
managed and accounted for and includes deployment requirements
necessary to provide support to DoD in applicable operations.
d. Costs
A negligible burden reduction to the public may be achieved by the
clarifications and increased transparency provided by this revision.
Contractors may save time by having increased access to DoD policy
requirements and in avoiding unnecessary duplication or providing
personnel not suitable or prepared to support applicable operations
outside the United States. The changes implemented by this rule are not
expected to alter significantly the baseline burden that was calculated
as part of the most recent SPOT-ES system collection, Control Number
0704-0460, approved by the OMB in 2019 in accordance with the Public
Law 96-511, ``Paperwork Reduction Act.''
[[Page 1065]]
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Collection instrument (SPOT 2016 approved 2019 approved
database) estimates estimates
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Estimation of Respondent Burden Hours
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Number of Respondents.............. 1670 964.
Number of Responses per Respondent. 56 77.
Number of Total Annual Responses... 93,520 74,561.
Response Time (Amount of time .5 .5.
needed to complete the collection
instrument).
Respondent Burden Hours (Total 46,760 37,291.
Annual Responses multiplied by
Response Time) Please compute
these into hours).
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Labor Cost of Respondent Burden
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Number of Responses................ 93,520 74,561
(decrease of
18,959).
Response Time per Response......... .5 .5.
Respondent Hourly Wage............. $36.00 $32.11.
Labor Burden per Response (Response $18.00 $16.06.
Time multiplied by Respondent
Hourly Wage).
Total Labor Burden (Number of $1,683,360 $1,197,077
Respondents multiplied by Response (decrease of
Time multiplied by Respondent $486,283).
Hourly Wage).
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The burden and cost decreased due to contractor deployments to
ongoing contingencies having been reduced since 2016. Thus, the number
of responses required was reduced from 93,520 to 74,561. This drove the
associated calculations down and resulted in a decrease in cost of
$486,283. In addition, the difference in the respondent hourly range is
attributed to the respondent labor category from a management labor
category in 2016 to human resources specialist in 2019. Wage
information is based on data from the Department of Labor Statistics
(https://www.bls.gov/oes/current/oes_nat.htm).
Based on data from the Federal Procurement Data System--Next
Generation for contract actions for fiscal year 2019 with a place of
performance outside the United States, approximately 15,742 of 2.4
million (or 1 percent), are to small businesses. This amounts to
$2,438,406,319 of $36,747,264,771 (or less than 8 percent) of contracts
obligated to small businesses worldwide.
e. Benefits
OCS is a force multiplier, giving commanders more options, and
supports force optimization. When properly planned for and integrated
into operations, OCS can be leveraged to support the Secretary of
Defense's objective of restoring military readiness and to close any
gaps in fulfilling requirements associated with maintenance, material,
intelligence information, or translation services, which can be filled
by either short- or long-term commercial capabilities. This rule most
significantly improves and refines DoD policy for planning and
integrating contracted support in applicable operations. The Department
has been working for more than a decade to establish OCS as a core
defense capability; one that minimizes risk, increases readiness and
flexibility, and improves effectiveness. This rule codifies policy that
implements a programmatic approach and improves oversight of contracted
support, reducing the likelihood that historical instances of waste,
fraud, and abuse will be repeated. This rule furthermore ensures
contractors supporting applicable operations are fully prepared to meet
the requirements necessary to support operations outside the United
States.
f. Alternatives
The DoD has considered the following alternatives:
[ssquf] No action--maintain the status quo. If no action is taken,
the significant improvements made to accounting and managing, planning
for, and overseeing contracted support will not be codified, raising
the risk that past mismanagement will persist, resulting in significant
waste, fraud, and abuse. In addition, the rule must be updated and
published before an update to the associated DoD issuance, DoD
Instruction 3020.41, ``Operational Contract Support (OCS),'' may be
issued. Publishing the updated policy is required to remove the OCS
element of DoD Contract Management as a GAO High-Risk Area.
[ssquf] Publish proposed rule. Codify changes in policy and statute
that result in improved management of contract requirements, contractor
management and visibility and accountability of contractors. These
improvements will support removing OCS as a sub-area under the GAO High
Risk Area of DoD Contract Management.
In summary, if the status quo is maintained, resolution of the GAO
recommendations cannot be implemented.
B. Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)
The DoD certifies that this rule, if promulgated, does not have a
significant economic impact on a substantial number of small entities.
Based on data from the Federal Procurement Data System--Next Generation
for contract actions for fiscal year 2019 with a place of performance
outside the United States, approximately 15,742 of 2.4 million (or 1
percent), are to small businesses. This amounts to $2,438,406,319 of
$36,747,264,771 (or less than 8 percent) of contracts obligated to
small businesses worldwide. Therefore, the requirements of the
Regulatory Flexibility Act do not apply.
C. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq. generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. The DoD will submit a report containing the final rule
and other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States. A
major rule cannot take effect until 60 days after it is published in
the Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).
D. Sec. 202, Public Law 104-4, ``Unfunded Mandates Reform Act''
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA)
[[Page 1066]]
(2 U.S.C. 1532) requires agencies to assess anticipated costs and
benefits before issuing any rule whose mandates require spending in any
one year of $100 million in 1995 dollars, updated annually for
inflation. This rule will not mandate any requirements for State,
local, or tribal governments.
E. Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter
35)
It has been determined that 32 CFR part 158 does impose reporting
or recordkeeping requirements under the Paperwork Reduction Act of
1995. This SPOT-ES system collection has been reviewed and approved by
the OMB and assigned OMB Control Number 0704-0460 (cleared through
September 30, 2022). The SPOT-ES collection package encapsulated the
requirement for all DoD, Department of State (DOS), and United States
Agency for International Development (USAID) contractor personnel to
register in the SPOT-ES database. Within the current collection, 87
percent of contractor personnel records were related to DoD contracts
and less than 13 percent were from other government agencies. This
collection of information does not require collection to be conducted
in a manner inconsistent with the guidelines delineated in 5 CFR
1320.5(d)(2).
System of Records Notices (SORNs) and Privacy Impact Assessments
(PIAs) (https://www.dmdc.osd.mil/appj/dwp/documents.jsp) have been
accomplished under SORN Identifier DMDC 18 DoD (https://dpcld.defense.gov/Privacy/SORNsIndex/DOD-wide-SORN-Article-View/Article/570569/dmdc-18-dod/), ``Synchronized Predeployment Operational
Tracker Enterprise Suite.''
F. Executive Order 13132, ``Federalism''
Executive Order 13132 establishes certain requirements that an
agency must meet when it promulgates a proposed rule (and subsequent
final rule) that imposes substantial direct requirement costs on State
and local governments, preempts State law, or otherwise has federalism
implications. The changes in this rule will not have a substantial
effect on State and local governments and do not implicate federalism.
List of Subjects in 32 CFR Part 158
Accountability/visibility, Accounting, Armed forces, Combating
trafficking in persons, Deployment and redeployment, Government
contracts, Medical clearances, Passports and visas, Planning, Security
measures, Support to contractors, Transportation.
0
Accordingly, 32 CFR part 158 is proposed to be revised to read as
follows:
PART 158--OPERATIONAL CONTRACT SUPPORT (OCS) OUTSIDE THE UNITED
STATES
Sec.
158.1 Purpose.
158.2 Applicability.
158.3 Definitions.
158.4 Policy.
158.5 Procedures.
158.6 Guidance for contractor medical and dental fitness.
Authority: Public Law 110-181; Public Law 110-417.
Sec. 158.1 Purpose.
This part establishes policy, assigns responsibilities, and
provides procedures for operational contract support (OCS), including
contract support integration, contracting support, management, and
deployment of defense contractor personnel in applicable operations
outside the United States.
Sec. 158.2 Applicability.
This part applies to contracts and contractor personnel supporting
DoD Components operating outside the United States in contingency
operations, humanitarian assistance, or peace operations and other
activities, including operations and exercises as determined by a
Combatant Commander or as directed by the Secretary of Defense.
Sec. 158.3 Definitions.
Unless otherwise noted, the following terms and their definitions
are for the purposes of this part.
Acquisition. The acquiring by contract with appropriated funds of
supplies or services (including construction) by and for the use of the
Federal Government through purchase or lease, whether the supplies or
services are already in existence or must be created, developed,
demonstrated, and evaluated. Acquisition begins at the point when
agency needs are established and includes the description of
requirements to satisfy agency needs, solicitation and selection of
sources, award of contracts, contract financing, contract performance,
contract administration, and those technical and management functions
directly related to the process of fulfilling agency needs by contract.
Applicable operations. Contingency operations, humanitarian
assistance, or peace operations conducted outside the United States and
other activities, including operations and exercises outside the United
States as determined by a combatant commander (CCDR) or as directed by
the Secretary of Defense.
Austere environment. Areas where applicable operations may be
conducted that are in remote, isolated locations, where access to
modern comforts and resources may be limited or non-existent.
Civil augmentation program. External support contracts designed to
augment Military Department logistics capabilities with contracted
support in both preplanned and short-notice operations.
Contingency contract. A legally binding agreement for supplies,
services, and/or construction let by a U.S. Government contracting
officer in the operational area, or that has a prescribed area of
performance within an operational area.
Contingency operation. A military operation that is either
designated by the Secretary of Defense as a contingency operation or
becomes a contingency operation as a matter of law as defined in 10
U.S.C. 101(a)(13).
Contract administration. The processes and procedures of
contracting, from contract award through closeout, that includes
oversight efforts by contracting professionals and designated non-
contracting personnel to ensure that supplies, services, and/or
construction are delivered and/or performed in accordance with the
terms and conditions of the contract.
Contract support integration. The coordination and synchronization
of contracted support executed in a designated operational area in
support of military operations.
Contracting. Purchasing, renting, leasing, or otherwise obtaining
supplies or services from nonfederal sources. Contracting includes
description (but not determination) of supplies and services required,
selection and solicitation of sources, preparation and award of
contracts, and all phases of contract administration. It does not
include making grants or cooperative agreements.
Contracting officer. A person with the authority to enter into,
administer, and/or terminate contracts and make related determinations
and findings. The term includes certain authorized representatives of
the contracting officer acting within the limits of their authority as
delegated by the contracting officer. ``Administrative contracting
officer (ACO)'' refers to a contracting officer who is administering
contracts. ``Termination contracting officer (TCO)'' refers to a
contracting officer who is settling terminated contracts. A single
contracting officer may be responsible for duties in any or all of
these areas.
[[Page 1067]]
Contracting Officer's Representative (COR). An individual,
including a contracting officer's technical representative (COTR),
designated and authorized in writing by the contracting officer to
perform specific technical or administrative functions.
Contracting support. The coordination of contracts and execution of
contracting authority by a warranted contracting officer that legally
binds commercial entities to perform contractual requirements in
support of DoD operational requirements.
Contractor management. The oversight and integration of contractor
personnel and associated equipment providing support to military
operations.
Contractor personnel. Any individual, employed by a firm,
corporation, partnership, or association, employed under contract with
the DoD to furnish services, supplies, or construction. Contractor
personnel may include U.S. citizens and host nation and third country
national (TCN) individuals.
Contractor personnel accountability. The process of identifying,
capturing, and recording the personally identifiable information and
assigned permanent duty location of an individual contractor employee
through the use of a designated database.
Contractor personnel visibility. Information on the daily location,
movement, status, and identity of contractor personnel.
Contractors Authorized to Accompany the Force (CAAF). Contractor
personnel and all tiers of subcontractor personnel authorized to
accompany U.S. Armed Forces in applicable operations outside of the
United States who have been afforded this status through the issuance
of a Letter of Authorization (LOA). CAAF generally include all U.S.
citizen and TCN employees not normally residing within the operational
area whose area of performance is in the direct vicinity of the U.S.
Armed Forces and who are routinely co-located with the U.S. Armed
Forces. In some cases, CCDR subordinate commanders may designate
mission-essential host nation (HN) or local national (LN) contractor
personnel (e.g., interpreters) as CAAF. CAAF includes contractor
personnel previously identified as contractors deploying with the
force. CAAF status does not apply to contractor personnel within U.S.
territory working in support of contingency operations outside the
United States.
Defense contractor. Any individual, firm, corporation, partnership,
association, or other legal non-Federal entity that enters into a
contract directly with the DoD to furnish services, supplies, or
construction.
DoD Components. Includes the Office of the Secretary of Defense,
the Military Departments, the Office of the Chairman of the Joint
Chiefs of Staff (CJCS) and the Joint Staff, the Combatant Commands
(CCMDs), the Office of the Inspector General of the Department of
Defense, the Defense Agencies, and the DoD Field Activities.
Essential contractor service. A service provided by a firm or an
individual under contract to the DoD to support mission-essential
functions, such as support of vital systems, including ships owned,
leased, or operated in support of military missions or roles at sea;
associated support activities, including installation, garrison, and
base support services; and similar services provided to foreign
military sales customers under the Security Assistance Program.
Services are essential if the effectiveness of defense systems or
operations has the potential to be seriously impaired by the
interruption of these services, as determined by the appropriate
functional commander or civilian equivalent.
Expeditionary Contract Administration (ECA). Contract
administration conducted during joint or other expeditionary
operations. Formerly known as the Contingency Contract Administrative
Services or CCAS.
Expeditionary operations. Activities organized to achieve a
specific objective in a foreign country.
External support contracts. Contracts awarded by contracting
organizations whose contracting authority does not derive directly from
the theater support contracting head(s) of contracting activity or from
systems support contracting authorities.
Host nation (HN). A nation that permits, either in writing or other
official invitation, government representatives or agencies and/or
agencies of another nation to operate, under specified conditions,
within its borders.
Hostile environment. Operational environment in which local
government forces, whether opposed to or receptive to operations that a
unit intends to conduct, do not have control of the territory and
population in the intended operational area.
Isolated personnel. U.S. military, DoD civilians, and contractor
personnel (and others designated by the President or Secretary of
Defense) who are unaccounted for as an individual or a group while
supporting an applicable operation and are, or may be, in a situation
where they must survive, evade, resist, or escape.
Law of war. The treaties and customary international law binding on
the United States that regulate: The resort to armed force; the conduct
of hostilities and the protection of war victims in international and
non-international armed conflict; belligerent occupation; and the
relationships between belligerent, neutral, and non-belligerent States.
Sometimes also called the ``law of armed conflict'' or ``international
humanitarian law,'' the law of war is specifically intended to address
the circumstances of armed conflict.
Letter of authorization (LOA). A document issued by a contracting
officer or his or her designee that authorizes contractor personnel to
accompany the force to travel to, from, and within an operational area,
and outlines U.S. Government authorized support authorizations within
the operational area, as agreed to under the terms and conditions of
the contract. For more information, see 48 CFR subpart 225.3.
Local national (LN). An individual who is a permanent resident of
the nation in which the United States is conducting operations.
Long-term care. A variety of services that help a person with
comfort, personal, or wellness needs. These services assist in the
activities of daily living, including such things as bathing and
dressing. Sometimes known as custodial care.
Mission-essential functions. Those organizational activities that
must be performed under all circumstances to achieve DoD component
missions or responsibilities, as determined by the appropriate
functional commander or civilian equivalent. Failure to perform or
sustain these functions would significantly affect the DoD's ability to
provide vital services or exercise authority, direction, and control.
Non-CAAF. Personnel who are not designated as CAAF, such as LN
employees and non-LN employees who are permanent residents in the
operational area or TCNs not routinely residing with the U.S. Armed
Forces (and TCN expatriates who are permanent residents in the
operational area), who perform support functions away from the close
proximity of, and do not reside with, the U.S. Armed Forces. U.S.
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 the U.S. Armed
Forces.
[[Page 1068]]
Operational area. An overarching term encompassing more descriptive
terms (such as area of responsibility and joint operations area) for
geographic areas where military operations are conducted.
Operational contract support (OCS). The ability to orchestrate and
synchronize the provision of integrated contract support and management
of contractor personnel providing support to command-directed
operations within a designated operational area.
Operationally critical support. A critical source of supply for
airlift, sealift, intermodal transportation services, or logistical
support that is essential to the mobilization, deployment, or
sustainment of the U.S. Armed Forces in applicable operations.
Prime contractor. Any supplier, distributor, vendor, or firm that
has entered into a contract with the United States government.
Replacement centers. Centers at selected installations that ensure
necessary accountability, training, and processing actions are taken to
prepare personnel for onward movement and deployment to a designated
operational area.
Requiring activity. A military or other designated supported
organization that identifies the need for and receives contracted
support to meet mission requirements during military operations.
Subcontractor. Any supplier, distributor, vendor, or firm that
furnishes supplies or services to or for a prime contractor or another
subcontractor.
Synchronized Pre-deployment Operational Tracker-Enterprise System
(SPOT-ES). A common joint database used to maintain contractor
personnel visibility and accountability in applicable operations.
References to SPOT-ES in this part will refer to that system or any
database system that supersedes it for use in OCS.
Systems support contract. Contracts awarded by Military Service
acquisition program management offices that provide fielding support,
technical support, maintenance support, and, in some cases, repair
parts support, for selected military weapon and support systems.
Theater business clearance. A CCDR policy or process to ensure
visibility of and control over systems support and external support
contracts executing or delivering support in designated areas of
operations.
Theater support contract. A type of contract awarded by contracting
officers deployed to an operational area serving under the direct
contracting authority of the Military Service component, special
operations force command, or designated joint contracting authority for
the designated operation.
Total force. The organizations, units, and individuals that
comprise the DoD resources for implementing the National Security
Strategy. It includes DoD Active and Reserve Component military
personnel, military retired members, DoD civilian personnel (including
foreign national direct- and indirect-hires, as well as nonappropriated
fund employees), contractors, and host-nation support personnel. (For
source information, see paragraph (a) of appendix A to this part.)
Uncertain environment. Operational environment in which host
government forces, whether opposed to or receptive to operations that a
unit intends to conduct, do not have totally effective control of the
territory and population in the intended operational area.
Sec. 158.4 Policy.
It is DoD policy that:
(a) Defense contractor personnel are part of the total force. (See
paragraph (a) of appendix A of this part).
(b) DoD Components implement OCS functions, including contract
support integration, contracting support, and contractor management,
during applicable operations.
(c) DoD Components will use contracted support only in appropriate
situations, consistent with 48 CFR subpart 7.5, 48 CFR subpart 207.5,
and Office of Federal Procurement Policy (OFPP) Policy Letter 11-01
(available at https://www.federalregister.gov/documents/2011/09/12/2011-23165/publication-of-the-office-of-federal-procurement-policy-ofpp-policy-letter-11-01-performance-of), and paragraph (b) of appendix
A to this part.
(d) Generally, contractors are responsible for providing their
employees with all life, mission, medical, logistics, and
administrative support necessary to perform the contract. However, in
many operations, especially in those in which conditions are austere,
hostile, and/or non-permissive, the contracting officer may decide it
is in the interest of the U.S. Government to allow for selected life,
mission, medical, logistics, and administrative support to be provided
to contractor personnel to ensure continuation of essential contractor
services. Contractors authorized to accompany the force (CAAF) may
receive U.S. Government-furnished support commensurate with the
operational situation in accordance with the terms of the contract.
(e) A common joint database (i.e., the Synchronized Predeployment
and Operational Tracker-Enterprise Suite (SPOT-ES) or its successor)
will be used to maintain contractor personnel visibility and
accountability in applicable operations. References to SPOT-ES in this
part will refer to that system or any database system that supersedes
it for contractor personnel visibility and accountability.
(f) Solicitations and contracts will:
(1) Require defense contractors to provide personnel who are ready
to perform contract duties in applicable operations and environments by
verifying the medical, dental, and psychological fitness of their
employees and, if applicable, by ensuring currency of any professional
qualifications and associated certification requirements needed for
employees to perform contractual duties.
(2) Incorporate contractual terms and clauses into the contract
that are consistent with applicable host nation (HN) laws and
agreements or designated operational area performance considerations.
(g) Contracts for highly sensitive, classified, cryptologic, or
intelligence projects and programs must implement this rule to the
maximum extent possible, consistent with applicable laws, Executive
orders, presidential directives, and relevant DoD issuances. To the
extent that contracting activities are unable to comply with this rule,
they should submit a request for a waiver to the Under Secretary of
Defense for Acquisition and Sustainment (USD(A&S)). Waiver requests
should include specific information providing the rationale regarding
the inability to comply with this rule.
Sec. 158.5 Procedures.
(a) Planning considerations and requirements; requirements for
publication. CCDRs will make management policies and specific OCS
requirements for contractual support available to affected contractor
personnel. The Geographic Combatant Commander (GCC) OCS web page will
set forth the following:
(1) Theater business clearance (TBC) requirements for contracts
currently being performed and delivering contracted support in the
CCDR's AOR.
(2) Restrictions imposed by applicable local laws, international
law, status of forces agreements (SOFAs), and other agreements with the
HN.
(3) CAAF-related deployment requirements, including, but not
limited to:
[[Page 1069]]
(i) Pre-deployment and required individual protective equipment
(IPE) training.
(ii) Physical health standards.
(iii) Immunization and medical requirements.
(iv) Deployment procedures and theater reception.
(4) Reporting requirements for accountability and visibility of
contractor personnel and associated contracts.
(5) Operational security (OPSEC) plans and restrictions.
(6) Force protection policies.
(7) Personnel recovery procedures.
(8) Availability of medical and other authorized U.S. Government
support (AGS).
(9) Redeployment procedures, including disposition of U.S.
Government-furnished equipment.
(b) Contractual relationships. The contract provides the only legal
basis for the contractual relationship between the DoD and the
contractor. The contracting officer is the only individual with the
legal authority to enter into such a binding relationship with the
contractor.
(1) Commanders have the ability to restrict installation access,
and contractor personnel must comply with applicable CCDR and local
commander force protection policies. However, military commanders or
unit personnel do not have contracting authority over contractors or
contractor personnel and may not direct contractors or contractor
personnel to perform contractual tasks. Moreover, the contract does not
provide a basis for commanders to exercise operational control or
tactical control over contractors or their personnel or to assign or
attach contractors or their personnel to a command or organization.
(2) The contract must specify:
(i) The terms and conditions under which the contractor is to
perform, including minimum acceptable professional and technical
standards.
(ii) The method by which the contracting officer will notify the
contractor of the deployment procedures to process contractor personnel
who are deploying to the operational area.
(iii) The specific contractual support terms and agreement between
the contractor and DoD.
(iv) The appropriate flow-down of provisions and clauses to
subcontractors and state that the service performed by contractor
personnel is not considered to be active duty or active service. For
more information, see paragraph (c) in appendix A to this part, and 38
U.S.C. 106, ``Active Duty Service Determinations for Civilian or
Contractual Groups.''
(3) The contract must contain applicable clauses to ensure
efficient deployment, accountability, visibility, protection, and
redeployment of contractor personnel and detail authorized levels of
health service, sustainment, and other support that is authorized to be
provided to contractor personnel supporting applicable operations
outside the United States.
(c) Restrictions on contractors performing inherently governmental
functions. (1) Paragraph (c) of appendix A of this part, 48 CFR subpart
7.5, 48 CFR subpart 207.5; Public Law 105-270 and Office of Management
and Budget Circular No. A-76 (available at https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A76/a76_incl_tech_correction.pdf) bar inherently governmental functions and
duties from private sector performance.
(2) Contractor personnel may provide support during applicable
operations, including, but not limited to:
(i) Transporting munitions and other supplies.
(ii) Providing communications support.
(iii) Performing maintenance functions for military equipment.
(iv) Providing force protection and private security services.
(v) Providing foreign language interpretation and translation
services.
(vi) Providing logistics services, such as billeting and messing.
(vii) Intelligence surveillance and reconnaissance support.
(viii) Commercial air assets.
(3) The requiring official will review each service performed by
contractor personnel in applicable operations on a case-by-case basis
to ensure compliance with paragraph (b) of appendix A of this part and
applicable laws and international agreements.
(4) Restrictions on use of contractor personnel for private
security services. A contractor may be authorized to provide private
security services only if such authorization is consistent with
applicable U.S., local, and international law, including applicable
agreements with the HN or other applicable international agreements,
and 32 CFR part 159. For more information, see paragraph (b) of
appendix A of this part and 48 CFR subpart 252.2, which provide
specific procedures and guidance.
(d) Combating trafficking in persons. Trafficking in persons is a
violation of U.S. law and internationally recognized human rights, and
is incompatible with DoD core values.
(1) 48 CFR subpart 222.17 and 48 CFR 52.222-50 also known and
referred to as Combating Trafficking in Persons, describe how
contractors, contracting officers and their representatives, and
commanders must deter activities such as prostitution, forced labor,
and other related activities contributing to trafficking in persons.
For more information, see paragraph (d) of appendix A to this part.
(2) Contracts in support of applicable operations will include
terms and provisions that require that the contractor remove personnel
from the performance of the contract and return any of its personnel
who have been determined to have engaged in any of the activities
mentioned in paragraph (h)(4)(v)(H) of this section from the
operational area to the home of record, point of origin, or an
authorized location at the end of contract performance or sooner as
directed by the contracting officer. Once notified of such an incident,
the contracting officer will notify the commander responsible in the
AOR and provide any information required to support an investigation.
For more information, see 48 CFR subpart 222.17.
(e) CAAF designation, legal status, credentialing, and security
clearance requirements--(1) CAAF designation. (i) CAAF designation is
provided to contractor personnel, including all tiers of subcontractor
personnel, through a letter of authorization (LOA). CAAF generally
include all U.S. citizen and third country national (TCN) employees not
normally residing within the operational area whose area of performance
is in the direct vicinity of the 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 the U.S. Armed Forces will be
afforded CAAF status through an LOA.
(ii) In some cases, CCDRs or subordinate commanders may designate
mission-essential HN or LN contractor personnel as CAAF unless
otherwise precluded by HN law, a SOFA, or other agreement. In general,
LNs are only afforded CAAF status when they assume great personal risk
to perform an essential function.
(iii) Personnel who do not receive a CAAF designation are referred
to as non-CAAF. Individuals' CAAF status may change depending on where
their employers or the provisions of their contract details them to
work. CAAF designation may affect, but does not necessarily affect, a
person's legal status under the law of war and the treatment to which
that person is entitled under
[[Page 1070]]
the 1949 Geneva Conventions if that person falls into the power of the
enemy during international armed conflict. Although CAAF are regarded
as ``persons authorized to accompany the armed forces,'' personnel who
are not CAAF may also receive this status under the law of war. For
more information, see Sec. 4.15 of paragraph (e) of appendix A of this
part. In addition, although CAAF designation and access to AGS often
coincide, CAAF status does not determine AGS provided.
(2) Legal status. In implementing this part, the DoD Component
heads must abide by applicable laws, regulations, international
agreements, and DoD policy as they relate to contractor personnel
performing contractual support in support of applicable operations.
(i) HN and third country laws. All contractor personnel must comply
with applicable HN and third country laws. The applicability of HN and
third country laws may be affected by international agreements (e.g.,
agreements between the United States and the HN) and customary
international law (e.g., limits imposed by customary international law
on the reach of third country laws).
(A) U.S., HN, or other countries may hire contractor personnel
whose status may change (e.g., from non-CAAF to CAAF) depending on
where in the operational AOR their employers or the provisions of their
contracts detail them to work.
(B) CCDRs, as well as subordinate commanders, Military Service
Component commanders, the Directors of the Defense Agencies, and
Directors of DoD Field Activities should recognize limiting factors
regarding the employment of LN and TCN personnel. Limiting factors
include, but are not limited to:
(1) Imported labor worker permits.
(2) Workforce and hour restrictions.
(3) Medical, life, and disability insurance coverage.
(4) Taxes, customs, and duties.
(5) Cost of living allowances.
(6) Hardship differentials.
(7) Access to classified information.
(8) Hazardous duty pay.
(ii) U.S. laws. U.S. citizens and CAAF, with some exceptions, are
subject to U.S. laws and U.S. Government regulations.
(A) All U.S. citizen and TCN CAAF are subject to potential
prosecutorial action under the criminal jurisdiction of the United
States, including, but not limited to, 18 U.S.C. 3261, also known and
referred to in this part as the Military Extraterritorial Jurisdiction
Act of 2000 (MEJA). MEJA extends U.S. federal criminal jurisdiction to
certain contractor personnel for offenses committed outside U.S.
territory.
(B) The March 10, 2008, Secretary of Defense Memorandum states that
contractor personnel are subject to prosecution pursuant to 10 U.S.C.
Chapter 47, also known and referred to in this part as the Uniform Code
of Military Justice (UCMJ), when serving overseas in support of a
declared war or contingency, and provides guidance to commanders on the
exercise of this UCMJ jurisdiction.
(C) Other U.S. law may allow prosecution of offenses by contractor
personnel (e.g., 18 U.S.C. 7).
(3) 1949 Geneva Conventions. The 1949 Geneva Conventions, including
the Geneva Convention Relative to the Treatment of Prisoners of War,
may be applicable to certain contractor personnel who fall into the
power of the enemy during international armed conflict.
(i) All contractor personnel may be at risk of injury or death
incidental to enemy actions while supporting military operations.
(ii) Contractor personnel with CAAF status will receive an
appropriate identification card required by the Geneva Convention
Relative to the Treatment of Prisoners of War, consistent with
paragraph (f) of appendix A to this part.
(iii) CAAF may be used in support of applicable operations,
consistent with the terms of U.S. Government authorization. If they
fall into the power of the enemy during international armed conflict,
contractor personnel with CAAF status are entitled to prisoner of war
status.
(4) Credentialing. Contracts must require CAAF to receive an
identification card with the Geneva Convention's category of persons
authorized to accompany the armed forces. For more information, see
paragraphs (f) through (h) of appendix A to this part. At the time of
identification card issuance, CAAF must present their SPOT-ES-generated
LOA as proof of eligibility.
(i) Sponsorship must incorporate the processes for confirming
eligibility for an identification card. The sponsor is the person
affiliated with the DoD or another Federal agency that takes
responsibility for verifying and authorizing an applicant's need for a
Geneva Convention identification card. A DoD official or employee must
sponsor applicants for a common access card (CAC).
(ii) Individuals who have multiple DoD personnel category codes
(e.g., an individual who is both a reservist and a contractor) will
receive a separate identification card in each personnel category for
which they are eligible. Individuals under a single personnel category
code may not hold multiple current identification cards of the same
form.
(5) Security clearance requirements. To the extent necessary, the
contract must require the contractor to provide personnel who have the
appropriate security clearance or who are able to satisfy the
appropriate background investigation requirements to obtain access
required to perform contractual requirements in support of the
applicable operation.
(f) Considerations for support to contractors--(1) U.S. Government
support. Generally, contracts supporting applicable operations must
require contractors to provide to their personnel all life, mission,
medical, and administrative support necessary to perform the
contractual requirements and meet CCDR guidance posted on the GCC OCS
web page. In some operations, especially those in which conditions are
austere, uncertain, or non-permissive, the CCDR may decide it is in the
U.S. Government's interest for the DoD to allow contractor personnel
access to selected AGS. The contract must state the level of access to
AGS in its terms and conditions.
(i) In operations where conditions are austere, uncertain, or non-
permissive, the contracting officer will consult with the requiring
activity to determine if it is in the U.S. Government's interests to
allow for selected life, mission, medical, and administrative support
to certain contractor personnel.
(ii) The solicitation and contract must specify the level of AGS
that the U.S. Government will provide to contractor personnel and what
support provided to the contractor personnel is reimbursable to the
U.S. Government.
(iii) Access to DoD benefits facilitated by the identification card
may be granted to contractors under certain circumstances. For more
information, see paragraph (i) of appendix A to this part.
(2) IPE. When necessary or directed by the CCDR, the contracting
officer will include language in the contract authorizing the issuance
of military IPE (e.g., chemical, biological, radiological, nuclear
(CBRN) protective ensemble, body armor, ballistic helmet) to contractor
personnel as part of AGS.
(i) Typically, IPE will be issued by the central issue facility at
the deployment center before deployment to the designated operational
area and must be accounted for and returned to the U.S. Government or
otherwise accounted for,
[[Page 1071]]
in accordance with appropriate DoD Component regulations, directives,
and instructions.
(ii) Contractor personnel deployment training will include training
on the proper care, fitting, and maintenance of protective equipment,
whether issued by the U.S. Government or provided by the contractor in
accordance with the contractual requirements. This training will
include practical exercises within mission-oriented protective posture
levels.
(iii) When the terms and conditions of a contract require a
contractor to provide IPE, such IPE must meet minimum standards as
defined by the contract.
(3) Clothing. Contractors, or their personnel, must provide their
own personal clothing, including casual and work clothing required to
perform the contract requirements.
(i) Generally, CCDRs will not authorize the issuance of military
clothing to contractor personnel or will not allow the wearing of
military or military look-alike uniforms. Contractor personnel are
prohibited from wearing military clothing unless specifically
authorized in writing by the CCDR. However, a CCDR or subordinate joint
force commander (JFC) deployed forward may authorize contractor
personnel to wear standard uniform items for operational reasons.
Contracts must include terms and clauses that require that this
authorization be provided in writing by the CCDR and that the uniforms
are maintained in the possession of authorized contractor personnel at
all times.
(ii) When commanders issue any type of standard uniform item to
contractor personnel, care must be taken to ensure that contractor
personnel are distinguishable from military personnel through the use
of distinctive patches, arm bands, nametags, or headgear, consistent
with force protection measures, and that contractor personnel carry the
CCDR's written authorization with them at all times.
(4) Weapons. Contractor personnel are not authorized to possess or
carry firearms or ammunition during applicable operations, except as
provided in paragraph (h)(2)(ii) of this section and 32 CFR part 159.
The contract will provide the terms and conditions governing the
possession of firearms by contractor personnel. Information on all
weapons authorized for contractors and their personnel will be entered
into the SPOT-ES database.
(5) Mortuary affairs. The DoD Mortuary Affairs Program, as
described in paragraph (j) of appendix A to this part, covers all CAAF
who die while performing contractual requirements in support of the
U.S. Armed Forces. Mortuary affairs support and transportation will be
provided on a reimbursable basis for the recovery, identification, and
disposition of remains and personal effects of CAAF.
(i) Every effort must be made to identify remains and account for
un-recovered remains of contractor personnel and their dependents who
die in military operations, training accidents, and other incidents.
The remains of contractor personnel who die as the result of an
incident in support of military operations are afforded the same
dignity and respect afforded to military remains. For more information,
see paragraph (k) of appendix A to this part.
(ii) The DoD may provide mortuary affairs support and
transportation on a reimbursable basis for the recovery,
identification, and disposition of remains and personal effects of non-
CAAF at the request of the Department of State (DOS) and in accordance
with this rule, applicable agreements with the HN, and applicable
contract provisions. The Under Secretary of Defense for Personnel and
Readiness (USD(P&R)) will coordinate this support with the DOS,
including for cost reimbursement to the DoD Component for the provision
of this support.
(iii) The responsibility for coordinating the transfer of non-CAAF
remains to the HN or affected nation resides with the GCC in
coordination with the DOS, through the respective embassies, or through
the International Committee of the Red Cross, the International
Federation of the Red Cross or Red Crescent Societies, as appropriate,
and in accordance with applicable contract clauses.
(6) Medical support and evacuation. Generally, the DoD will provide
only resuscitative care, stabilization, and hospitalization at military
medical treatment facilities (MTFs) and assistance with patient
movement in emergencies where loss of life, limb, or eyesight could
occur. The DoD Foreign Clearance Guide (FCG) and the GCC OCS web pages
contain theater-specific contract language to provide contract terms to
clarify available healthcare for contractor personnel. During
operations in austere, uncertain, or hostile environments, CAAF may
encounter situations in which they cannot access adequate medical
support in the local area.
(i) All costs associated with the treatment and transportation of
contractor personnel to the selected civilian facility are reimbursable
to the U.S. Government and are the responsibility of contractor
personnel, their employers, or their health insurance providers. For
more information, see paragraph (l) of appendix A to this part. Nothing
in this paragraph is intended to affect the allowability of costs
incurred under a contract.
(ii) Medical support and evacuation procedures:
(A) All CAAF will normally be afforded emergency medical and dental
care if injured while supporting applicable operations. Additionally,
non-CAAF who are injured while in the vicinity of the U.S. Armed Forces
while supporting applicable operations also normally will 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:
(1) Examination and initial treatment of victims of sexual assault.
(2) Refills of prescriptions for life-dependent drugs.
(3) Repair of broken bones, lacerations, and infections.
(4) Traumatic injuries to the teeth.
(B) MTFs normally will not authorize or provide primary medical or
dental care to CAAF. When required and authorized by the CCDR or
subordinate JFC, this support must be specifically authorized under the
terms and conditions of the contract and detailed in the corresponding
LOA. Primary care is not authorized for non-CAAF. Primary care
includes:
(1) Routine inpatient and outpatient services.
(2) Non-emergency evacuation.
(3) Pharmaceutical support (with the exception of emergency refills
of prescriptions for life-dependent drugs).
(4) Non-emergency dental services.
(5) Other medical support, as determined by the CCDR or JFC based
on recommendations from the cognizant medical authority and the
existing capabilities of the forward-deployed MTFs.
(C) The DoD will not provide long-term care to contractor
personnel.
(D) The CCDR or subordinate commander has the authority to
quarantine or restrict movement of contractor personnel. For more
information, see paragraph (m) of appendix A to this part.
(E) When CAAF are evacuated for medical reasons from the designated
operational area to MTFs funded by the Defense Health Program, normal
reimbursement policies will apply for services rendered by the
facility. If CAAF require medical evacuation
[[Page 1072]]
outside the United States, the sending MTF staff will assist the CAAF
in making arrangements for transfer to a civilian facility of the
CAAF's choice. When U.S. forces provide emergency medical care to LN
contractor personnel, these patients will use HN transportation means,
when possible, for evacuation or transportation to their local medical
systems. For more information, see paragraph (n) of appendix A to this
part.
(7) Other AGS. 48 CFR subpart 225.3 lists types of support that may
be authorized for contractor personnel who are deployed with or
otherwise provide support to applicable operations, which may include
transportation to and within the operational area, mess operations,
quarters, phone service, religious support, and laundry.
(i) Contractor personnel of U.S. owned-contractors who are
supporting DoD activities may be authorized the use of the military
postal service. For more information, see paragraph (o) of appendix A
to this part. The extent of postal support will be set forth in the
contract. The provisions for postal support in such contracts must be
reviewed and approved by the applicable CCDR, or the designated
representative, and the Military Department concerned before execution
of the contract.
(ii) Morale, welfare, and recreation and exchange services are
authorized for contractor personnel who are U.S. citizens supporting
DoD activities outside the United States. For more information, see
paragraphs (p) and (q) of appendix A to this part.
(g) Accountability and visibility of contracts and contractor
personnel. (1) During applicable operations, contractors will use SPOT-
ES as follows:
(i) All CAAF will register in SPOT-ES by name.
(ii) Non-CAAF will be registered in SPOT-ES by name if they are
performing on a DoD contract for at least 30 consecutive days unless a
lesser number of days is requested by the CCDR or if they require
access to a U.S. or coalition-controlled installation. Contracting
officers will ensure non-CAAF who require access to U.S. or coalition-
controlled installations are registered in SPOT-ES before requesting or
receiving installation access.
(iii) All private security contractor personnel and all other
contractor personnel authorized to carry weapons, regardless of the
length of the performance or contract value, will register in SPOT-ES
by name.
(iv) During operations other than contingency operations,
humanitarian assistance, or peace operations, contractors will use
SPOT-ES in situations required by the CCDR and as follows:
(2) To account for:
(i) All U.S. citizen and TCN contractor personnel.
(ii) All private security contractor personnel and all other
contractor personnel authorized to carry weapons, where the designated
area and place of performance are outside the United States, regardless
of the length of performance or contract value.
(3) The contracting officer will account for an estimated total
number of LNs employed under the contract, by country or on a monthly
basis.
(4) Contract linguists will register in SPOT-ES in the same manner
as other contractor personnel and will also be tracked using the
Contract Linguist Enterprise-wide Database. For more information, see
paragraph (r) of appendix A to this part.
(5) LNs should be registered in SPOT-ES by name to improve data
quality and reduce confusion during a transition to accountability
requirements during a contingency operation, which will require by-name
accountability.
(6) The DoD has designated SPOT-ES as the joint web-based database
to assist the CCDRs in maintaining awareness of the nature, extent, and
potential risks and capabilities associated with contracted support for
contingency operations, humanitarian assistance, and peacekeeping
operations, or military exercises designated by the CCDR. To facilitate
integration of contractors and other personnel, as directed by the
USD(A&S) or the CCDR, and to ensure the accurate forecasting and
provision of accountability, visibility, force protection, medical
support, personnel recovery, and other related support, the following
procedures will help establish, maintain, and validate the accuracy of
information in the database.
(i) SPOT-ES will:
(A) Serve as the central repository for deployment status and
reporting on the contractor personnel as well as other U.S. Government
agency contractor personnel, as applicable. For additional information,
see paragraph (s) of appendix A to this part.
(B) Track information for all DoD contracts that are awarded in
support of applicable operations outside of the United States, in
accordance with the SPOT Business Rules and as directed by the
USD(A&S), 48 CFR subpart 225.3, or the CCDR. SPOT-ES will collect and
report on:
(1) The total number of contractor personnel working under
contracts entered into as of the end of each calendar quarter.
(2) The total number of contractor personnel performing security
functions under contracts entered into with the DoD.
(3) The total number of contractor personnel killed or wounded who
were performing under any contracts entered into with the DoD.
(C) Provide personnel accountability via unique identifier (e.g.,
Electronic Data Interchange Personnel Identifier or Foreign
Identification Number) of contractor personnel and other personnel, as
directed by the USD(A&S), 48 CFR subpart 225.3, or the CCDR.
(D) Contain, or link to, minimum contract information necessary to:
(1) Establish and maintain accountability of the personnel in
paragraph (g) of this section.
(2) Maintain information on specific equipment related to the
performance of private security contracts.
(3) Maintain oversight information on the contracted support in
applicable operations.
(E) Comply with:
(1) The personnel identity protection program requirements found in
paragraphs (t) and (u) of appendix A to this part.
(2) The DoD Information Enterprise architecture. For more
information, see paragraph (v) of appendix A to this part.
(3) The interoperability and secure sharing of information
requirements found in paragraphs (w) through (y) of appendix A to this
part.
(ii) Before registering in SPOT-ES, contracting officers, company
administrators, and U.S. Government administrators or authorities must
meet minimum training requirements in the SPOT Business Rules.
(iii) The contractor must enter all required data into SPOT-ES
before its employees may deploy to or enter a theater of operations,
and maintain such data, as directed by the USD(A&S), 48 CFR subpart
225.3, or the CCDR.
(iv) The contracting officer will enter the DoD contract services
or capabilities for all contracts that are awarded in support of
applicable operations, including theater support, external support, and
systems support contracts, into SPOT-ES consistent with 48 CFR 252.225-
7040.
(v) In accordance with applicable acquisition policy and
regulations and under the terms and conditions of each affected
contract, all contractors awarded contracts that support applicable
operations must input employee data and maintain accountability, by
name, of designated
[[Page 1073]]
contractor personnel in SPOT-ES as required by 48 CFR 252.225-7040.
(A) Contractors must maintain current status of the daily location
of their employees and, when requested, submit to the COR up-to-date,
real-time information reflecting all personnel deployed or to be
deployed in support of applicable operations.
(B) Prime contractors must enter up-to-date information regarding
their subcontractors at all tiers into SPOT-ES.
(vi) In all cases, users providing classified information in
response to the requirements of this part must report and maintain that
information on systems approved for the level of classification of the
information provided.
(7) The contracting officer or his or her designee will ensure a
SPOT-ES-generated LOA has been issued to all CAAF who are approved to
deploy, as required by 48 CFR 252.225-7040, and selected non-CAAF
(e.g., LN and non-LN employees who are permanent residents in the
operational area, or TCNs not routinely residing with the U.S. Armed
Forces who perform support functions away from the close proximity of,
and do not reside with, the U.S. Armed Forces, and private security
contractors), pursuant to 48 CFR subpart 225.3, or as otherwise
designated by the CCDR.
(i) The contract will require that all contractor personnel issued
an LOA carry the LOA with them at all times.
(ii) Reserved.
(h) Theater admission requirements. Special area, country, and
theater personnel clearance documents must be current, in accordance
with the DoD FCG, and coordinated with affected agencies to ensure that
entry requirements do not adversely affect accomplishment of mission
requirements.
(1) CAAF employed in support of DoD missions are considered DoD-
sponsored personnel for DoD FCG purposes.
(2) Contracting officers must ensure contracts include a
requirement for contractor personnel to meet theater personnel
clearance requirements and obtain personnel clearances through the
Aircraft and Personnel Automated Clearance System before entering a
designated theater of operations. For more information, see paragraph
(z) of appendix A to this part.
(3) Contracts must require contractor personnel to obtain proper
identification credentials, such as passports, visas, and other
documents required to enter and exit a designated operational area, and
have a required Geneva Conventions identification card, or other
appropriate DoD credential from the deploying center.
(i) Deployment procedures. Contracts must contain terms and
conditions that detail the need for contractors to follow these
credentialing requirements, as required by 48 CFR subpart 225.3, 48 CFR
252.225-7040, and as outlined in the DoD FCG. At a minimum, contracting
officers must ensure that contracts address operational area-specific
contract requirements and the means by which the DoD will inform
contractor personnel of the requirements and procedures applicable to
their deployment.
(1) Deployment center designation. A formally designated group,
joint, or Military Department deployment center will be used to conduct
deployment and redeployment processing for CAAF, unless contractor-
performed theater admission preparation is authorized or waived by the
CCDR or designee pursuant to DoDI 3020.41, ``Operational Contract
Support (OCS).'' If the contract contains clauses that specify another
U.S. Government-authorized process that incorporates all the functions
of a deployment center, such process may also be used by a contractor
to conduct deployment and redeployment processing for CAAF.
(2) Medical preparation. (i) In accordance with 32 CFR 158.7,
contracts must require that contractors provide medically and
physically qualified contractor personnel to perform duties in
applicable operations, as outlined in the contract.
(A) Any CAAF deemed unsuitable to deploy during the deployment
process due to medical or dental reasons will not be authorized to
deploy.
(B) The Secretary of Defense may direct immunizations as mandatory
for CAAF performing essential contractor services.
(C) For contracts that employ CAAF who are U.S. citizens, the
contract must require that contractors make available the medical and
dental records of deploying employees who authorize release for this
purpose based on this section, applicable cognizant medical authority
guidance, and relevant Military Department policy. These records should
include current panographic x-rays. For more information see paragraph
(aa) of appendix A to this part.
(ii) U.S. Government personnel may not involuntarily immunize
contractor personnel or require contractor personnel to disclose their
medical records involuntarily. Therefore, the contracting officer will
provide contractors time to notify and/or hire employees who
voluntarily consent to U.S. Government medical requirements, including
to receiving U.S. Government-required immunizations and disclosing
their private medical information to the U.S. Government.
(iii) All CAAF will receive medical threat pre-deployment briefings
at the deployment center to communicate health risks and
countermeasures in the designated operational area. For more
information, see paragraph (bb) of appendix A to this part.
(A) In accordance with GCC or JFC plans and orders, contracts must
include terms and conditions that fully specify health readiness and
force health protection capability, either as a responsibility of the
contractor or the DoD Components, to ensure appropriate medical
staffing in the operational area.
(B) Health surveillance activities must include plans for CAAF. For
more information, see paragraphs (bb) and (cc) of appendix A to this
part. Section 158.7 of this rule further addresses deoxyribonucleic
acid (DNA) collection and other medical requirements.
(3) Training. Joint training policy and guidance for the Military
Services, including contractors, is provided. For more information, see
paragraph (dd) of appendix A to this part. CCDRs will place standing
training requirements on the GCC OCS web pages for reference by
contractors. Other training requirements that are specific to an
applicable operation will be placed on the GCC OCS web pages shortly
after identifying the requirement so that contracting officers can
incorporate the training requirement into the appropriate contracts as
soon as possible. Training requirements:
(i) Must be included, or incorporated by reference in contracts
employing contractor personnel supporting applicable operations.
(ii) Include specific requirements established by the CCDR and
training required in accordance with this rule, 32 CFR part 159, and
paragraphs (ee) through (hh) of appendix A to this part.
(4) Deployment center procedures. Affected contracts must require
that all CAAF deploying from outside the operational area process
through a designated deployment center or a U.S. Government-authorized,
contractor-performed deployment processing facility before deploying to
an applicable operation and redeploy in the same manner. Upon receiving
the contracted company's certification that employees meet
deployability requirements, the contracting officer or representative
will digitally sign the LOA, which CAAF will then present to officials
at the deployment center. The
[[Page 1074]]
deployment process includes, but is not limited to:
(i) Verifying registration in SPOT-ES.
(ii) Issuing applicable U.S. Government-furnished equipment.
(iii) Verifying the completion of medical and dental screening
before arrival.
(iv) Administering required theater-specific immunizations and
medications not available through healthcare providers in the general
public.
(v) Verifying and, when necessary, providing required training,
country and cultural awareness briefings, and other training and
briefings, as required by the CCDR. Examples of required training
include, but are not limited to:
(A) Law of war, including the 1949 Geneva Conventions.
(B) Law and policy applicable to detainee operations and
intelligence interrogation operations, as appropriate.
(C) General orders.
(D) Standards of conduct.
(E) Force protection.
(F) Personnel recovery.
(G) First aid.
(H) Combatting trafficking in persons.
(I) OPSEC.
(J) Anti-terrorism.
(K) Counterintelligence reporting.
(L) The use of CBRN protective ensemble.
(M) Deployment health threats briefing.
(5) Certification. Contracts supporting applicable operations must
include terms and conditions requiring contractors to certify to the
authorized U.S. Government representative, before deployment, that each
individual has completed all required deployment processing actions.
(6) Legal. Contractor personnel are not entitled to military legal
assistance in-theater or at the deployment center. Individual
contractor personnel must have their personal legal affairs in order
(e.g., preparing and completing powers of attorney, wills, trusts, and
estate plans) before reporting to deployment centers.
(7) Waivers. For required contracted support of 17 days or less in
an operational area, the CCDR or designee may waive a portion of the
formal procedural requirements pursuant to DoDI 3020.41, ``Operational
Contract Support (OCS),'' which may include the CCDR or designee
waiving the requirement in writing for processing through a deployment
center. However, the CCDR or designee may not waive the requirements to
possess proper identification cards and to establish and maintain
accountability for all contractor personnel, or any medical requirement
without the prior approval of the cognizant medical authority or their
designee. If a contract authorizes contractor personnel to be armed,
the requirements of paragraphs (c)(4) and (k)(2) of this section may
not be waived.
(j) Reception--(1) Designated reception site. In applicable
operations, all CAAF must enter into the operational area through a
designated reception site.
(i) Based upon a visual inspection of the LOA, the site will verify
that contractor personnel are entered in SPOT-ES and meet theater-
specific entry requirements.
(ii) Contractor personnel already in the designated operational
area when a contingency is declared must report to the designated
reception site as soon as it is operational based on the terms and
conditions of the contract.
(iii) When entering a designated reception site for theater entry
processing, if any CAAF does not have the proper documentation to
perform in an area, he or she will be refused entry into the theater,
and the contracting officer will notify the contractor to take the
necessary action to resolve the issue. Should the contractor fail to
take action, the CAAF individual will be sent back to his or her
departure point, or directed to report to the Military Service
Component command or Defense Agency responsible for that specific
contract for theater entrance processing.
(2) Contractor integration. It is critical that CAAF brought into
an operational area are properly integrated into the military operation
through a formal reception process. At a minimum, they will:
(i) Meet theater entry requirements and be authorized to enter the
theater.
(ii) Be accounted for in SPOT-ES.
(iii) Possess any required IPE, including CBRN protective ensemble.
(iv) Be authorized any contractually required AGS and force
protection.
(k) In-theater management--(1) Conduct and discipline. Contract
terms and conditions must require that CAAF comply with CCDR theater
orders, applicable directives, laws, and regulations. Non-CAAF who
require base access to perform contractual requirements must follow
base force protection and security-related procedures, as applicable.
(i) The contracting officer may appoint a designee (usually a COR)
as a liaison between the contracting officer and the contractor and
requiring activity. This designee monitors and reports contractor
performance and requiring activity concerns to the contracting officer.
In emergency situations (e.g., enemy or terrorist actions or natural
disaster), the cognizant military commander may recommend or issue
warnings or messages urging contractor personnel to take emergency
actions to remove themselves from harm's way or to take other
appropriate self-protective measures. During armed conflict, contractor
personnel are not exempt from the authority that commanders may
exercise to control the movement of persons and vehicles within the
immediate vicinity of operations. For more information, see Sec. Sec.
5.2.2.1, 13.8, and 14.6 of paragraph (e) of appendix A to this part.
(ii) The contractor is responsible for disciplining contractor
personnel, as necessary and appropriate. However, in accordance with
paragraph (h)(1) of 48 CFR 252.225-7040, 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, who threaten force protection measures, or who fail to
comply with or violate applicable requirements of the contract. Such
action may:
(A) Include contractor personnel whose actual field performance
(certification or professional standard) is below the contractual
requirement.
(B) Be taken at U.S. Government discretion without prejudice to the
contractor's rights under any other provision of the contract. A
commander also has the authority to take certain actions affecting
contractor personnel, such as the ability to revoke or suspend security
access or impose restrictions from access to military installations or
specific worksites.
(iii) CAAF, or individuals employed by or accompanying the Military
Services outside the United States, are subject to potential
prosecutorial action under the criminal jurisdiction of the United
States, pursuant to Sections 7, 2441, 2442, or 3261 of Title 18,
U.S.C., or other provisions of U.S. law, including the UCMJ.
(A) Commanders possess significant authority to act whenever
criminal acts are committed by anyone subject to the MEJA and UCMJ that
relates to or affects the commander's responsibilities. This includes
situations in which the alleged offender's precise identity or actual
affiliation is undetermined. The March 10, 2008, Secretary of Defense
Memorandum provides guidance to commanders on the exercise of this UCMJ
jurisdiction over DoD contractor personnel serving with or accompanying
the U.S. Armed Forces overseas during declared war and in contingency
operations.
(B) Contracting officers will ensure that contractors are aware of
their
[[Page 1075]]
employees' status and liabilities as CAAF and the required training
associated with this status.
(C) CCDRs retain authority to respond to an incident, restore
safety and order, investigate, apprehend suspected offenders, and
otherwise address the immediate needs of the situation.
(iv) The Department of Justice may prosecute misconduct under
applicable Federal laws, including MEJA and 18 U.S.C. 2441. Contractor
personnel also are normally subject to the domestic criminal law of the
local country. When confronted with disciplinary problems involving
contractor personnel, commanders should seek the assistance of their
legal staff, the contracting officer responsible for the contract, and
the contractor's management team.
(v) In the event of an investigation of reported offenses allegedly
committed by or against contractor personnel, appropriate investigative
authorities will keep the contracting officer informed, to the extent
possible without compromising the investigation, if the alleged offense
has a potential contract performance implication.
(2) Force protection and weapons issuance. CCDRs must include
contractor personnel in their force protection planning and communicate
the results to contracting activities and contractors via the GCC OCS
web page. In general, contractors are responsible for the security of
their own personnel. Contractor personnel working within a U.S.
military facility or in close proximity to the U.S. Armed Forces may
receive incidentally the benefits of measures taken to protect the U.S.
Armed Forces. For more information, see paragraph (ee) of appendix A to
this part. However, where additional security is needed to achieve
force protection, and it is not operationally or cost effective for
contractors to do so individually, the commander may determine it is in
the interests of the U.S. Government to provide security for contractor
personnel. When security is provided through military means, contractor
personnel should receive a level of force protection equal to that of
DoD civilian employees.
(i) When the CCDR deems military force protection and legitimate
civil authority are unavailable or insufficient, he or she may
authorize, in writing, contractor personnel to be armed for self-
defense purposes only. In authorizing contractor personnel to be armed,
the contractor, the armed contractor personnel, and the U.S. military
must adhere to:
(A) Applicable U.S., HN, and international law;
(B) Relevant SOFAs and other agreements;
(C) Other arrangements with local authorities; and
(D) The rules for the use of force, and guidance and orders
regarding the possession, use, safety, accountability of weapons and
ammunition that are issued by the CCDR.
(ii) Depending on the operational situation and the specific
circumstances of contractor personnel, the contractor may apply for its
personnel to be armed for self-defense purposes on a case-by-case
basis. The appropriate Staff Judge Advocate (or their designee) to the
CCDR will review all applications to ensure there is a legal basis for
approval. In reviewing applications, CCDRs will apply the criteria
mandated for arming contractor personnel for private security services
consistent with 32 CFR part 159.
(A) In such cases, the contractor will validate to the contracting
officer, or designee, that the contractor personnel have received
weapons familiarization, qualification, and briefings regarding the
rules for the use of force, in accordance with CCDR policies.
(B) Acceptance of weapons by contractor personnel is voluntary. In
accordance with paragraph (j) of 48 CFR 252.225-7040, the contract must
require contractors to ensure that applicable U.S. law does not
prohibit personnel from possessing firearms.
(C) Contracts must require all contractor personnel to comply with
applicable CCDR and local commander force protection policies. When
armed for personal protection, the contract may only authorize
contractor personnel to use force for self-defense and must require
contractors to ensure that U.S. law does not prohibit its personnel
from possessing firearms, in accordance with paragraph (j) of 48 CFR
252.225-7040. Unless not subject to local laws or HN jurisdiction by
virtue of an international agreement or customary international law,
the contract must include terms and conditions setting forth that the
inappropriate use of force could subject contractor personnel to U.S.
and/or local or HN prosecution and civil liability.
(3) Personnel recovery, missing persons, and casualty reporting.
(i) The DoD personnel recovery program applies to all CAAF regardless
of their citizenship. For more information, see paragraph (ii) of
appendix A to this part. If a CAAF individual becomes isolated or
unaccounted for, the contractor must promptly file a search and rescue
incident report to the theater's personnel recovery architecture (e.g.,
the component personnel recovery coordination cell or the CCMD joint
personnel recovery center).
(ii) Upon recovery following an isolating event, a CAAF returnee
must enter the first of the three phases of reintegration. For more
information, see paragraph (jj) of appendix A to this part. The
contractor must offer the additional phases of reintegration to the
returnee to ensure his or her physical and psychological well-being
while adjusting to the post-captivity environment.
(iii) The contractor must report all CAAF and non-CAAF casualties.
For more information, see paragraph (s) of appendix A to this part.
(l) Redeployment procedures. The considerations in this section
apply during the redeployment of CAAF. At the end of the performance
period of a contract, or in cases of early redeployment, CAAF must
complete the redeployment process to adjust AGS requirements and turn
in U.S. Government-provided equipment.
(1) Preparation for redeployment. CAAF must complete intelligence
out-briefs and customs and immigration briefings and inspections in
accordance with CCDR policy and applicable HN law. CAAF are subject to
customs and immigration processing procedures at all designated stops
and their final destination during their redeployment. CAAF returning
to the United States are subject to U.S. reentry customs requirements
in effect at the time of reentry.
(2) Transportation out of theater. The terms and conditions of the
contract will state whether the U.S. Government will provide
transportation out of theater.
(i) Upon completion of the deployment or other authorized release,
the U.S. Government must provide contractor personnel transportation
from the theater of operations to the location from which they
deployed, in accordance with each individual's LOA and unless otherwise
directed. If commercial transportation is not available, it should be
stated in the LOA in accordance with paragraph (l) of appendix A to
this part. CAAF are also required to depart from the operational area
through the designated reception site.
(ii) Before redeployment, the contractor personnel, through his or
her contractor, will coordinate exit times and transportation with the
continental U.S. replacement center or designated reception site.
(3) Redeployment center procedures. In most instances, the
deployment center or site that prepared the CAAF for deployment will
serve as the return
[[Page 1076]]
processing center. As part of CAAF redeployment processing, the
designated reception site personnel will screen contractor records,
recover U.S. Government-issued identification cards and equipment, and
conduct debriefings, as appropriate. The returning CAAF will spend the
minimum amount of time possible at the return processing center in
order to complete the necessary administrative procedures.
(i) Contractor personnel must return all U.S. Government-issued
identification and access badges (e.g., badges, key cards, and other
access devices, including CACs).
(ii) Contractor personnel must return any issued clothing and
equipment and report any lost, damaged, or destroyed clothing and
equipment in accordance with procedures of the issuing facility.
Contractor personnel also will receive a post-deployment medical
briefing on signs and symptoms of potential diseases (e.g.,
tuberculosis (TB)). As some countries hosting an intermediate staging
base may not permit certain items to enter their territory, certain
clothing and equipment, whether issued by the contractor, purchased by
the employee, or provided by the DoD, may not be permitted to be
removed from the AOR. In this case, CCDR or JFC guidance and contract
terms and conditions will provide alternate methods of accounting for
U.S. Government-issued equipment and clothing.
(4) Update to SPOT-ES. Contracting officers or their designated
representatives must verify that contractors have updated SPOT-ES to
reflect their employee's change in status within three days of a
contractor employee's redeployment, close out the deployment, and
collect or revoke the LOA.
(5) Transportation to home destination. Transportation of CAAF from
the deployment center or site to their home destinations is the
employer's responsibility.
Sec. 158.6 Guidance for contractor medical and dental fitness.
(a) General. (1) DoD contracts requiring the deployment of CAAF
must include medical and dental fitness requirements as specified in
this section. Under the terms and conditions of their contracts,
contractors will employ personnel who meet such medical and dental
requirements. Replacement of non-medically qualified contractor
personnel already deployed to theater will be at the contractor's cost.
(2) The GCC concerned will establish force health protection
policies and programs for the protection of all forces assigned or
attached to their command in accordance with force health protection
(FHP) standards and applicable medical and dental standards of fitness
in order to promote and sustain a healthy and fit force. For more
information, see paragraph (kk) of appendix A to this part. When the
requiring activity requests exceptions to these standards through the
contracting officer, the CCDR concerned will establish a process for
reviewing such exceptions and ensuring that a mechanism is in place to
track and archive all approved and denied waivers, including the
medical condition supporting the basis for the waiver.
(3) The GCC concerned will ensure that processes and procedures are
in place to remove contractor personnel in theater who are not
medically qualified, once so identified by a healthcare provider. The
GCC concerned will ensure development of appropriate procedures and
criteria for requiring removal of contractor personnel identified as
``no longer medically qualified,'' and post such language on the GCC
OCS web page. Contracting officers will incorporate the language into
clauses for all contracts for performance in the AOR.
(4) Unless otherwise stated in the contract terms and conditions,
all medical evaluations and treatment are the contractor's
responsibility.
(b) Medical and dental evaluations. (1) All CAAF deploying in
support of an applicable operation must be medically, dentally, and
psychologically fit for deployment pursuant to paragraph (kk) of
appendix A to this part and CCDR guidance. Fitness specifically
includes the ability to accomplish the tasks and duties unique to a
particular operation and the ability to tolerate the environmental and
operational conditions of the deployed location. Under the terms and
conditions of their contracts, contractors will employ medically,
dentally, and psychologically fit contractor personnel to perform
contractual duties.
(2) All CAAF must undergo a medical and dental assessment within 12
months before arrival at the designated deployment center or U.S.
Government-authorized contractor-performed deployment processing
facility. This assessment, conducted by the contractor's medical health
provider, should emphasize diagnosing system disease conditions (e.g.,
cardiovascular, pulmonary, orthopedic, neurologic, endocrinologic,
dermatologic, psychological, visual, auditory, dental) that may
preclude the CAAF from performing the functional requirements of the
contract, especially in the austere work environments encountered in
some applicable operations.
(3) CAAF will receive a health threat and countermeasures briefing
from the applicable Military Service before deployment to the
operational area. For more information, see paragraph (bb) of appendix
A to this part.
(4) In general, CAAF who have any of the medical conditions listed
in paragraph (j) of this section should not be deployed.
(5) Individuals who are deemed ``not medically fit'' at the
deployment center or at any period during the deployment process based
upon an individual assessment by a licensed medical provider, or who
require extensive preventive dental care (see paragraph (j)(2)(xxv) of
this section), are not authorized to deploy.
(6) Non-CAAF shall be medically screened by a U.S. Government
designee when required by the requiring activity and the contract, for
the class of labor under consideration (e.g., LNs working in a dining
facility).
(7) Contracts will require contractors to replace individuals who
develop conditions that cause them to become medically unqualified to
perform contractual requirements at any time during contract
performance.
(8) Contracts must require that CAAF complete a post-deployment
health assessment in the Defense Medical Surveillance System at the end
of their deployment or within 30 days of redeployment. For more
information, see paragraph (bb) of appendix A to this part.
(c) Glasses and contact lenses. (1) If contractor personnel require
vision correction, they must have two pairs of glasses, and if
applicable, eyeglass inserts for a chemical protective mask. The
contractor personnel may also provide a written prescription to the
supporting military medical component in order to prepare eyeglass
inserts for use in a compatible chemical protective mask. If the type
of protective mask to be issued is known and time permits, the military
medical component should attempt to complete the preparation of
eyeglass inserts before deployment.
(2) Wearing contact lenses in a field environment is not
recommended and is at the contractor personnel's own risk due to the
potential for irreversible eye damage caused by debris, chemical or
other hazards present, and the lack of ophthalmologic care in a field
environment.
(d) Medications. Other than those force health protection
prescription products provided by the U.S.
[[Page 1077]]
Government to CAAF and selected non-CAAF, contracts must require that
contractor personnel deploy with a minimum 90-day supply of any
required medications obtained at their own expense. For more
information, see paragraph (bb) of appendix A to this part.
(1) Contractor personnel must know that deployed medical units are
equipped and staffed to provide emergency care to healthy adults and
are unable to provide or replace many medications required for routine
treatment of chronic medical conditions, such as high blood pressure,
heart conditions, and arthritis.
(2) The contract must require contractor personnel to review both
the amount of the medication and its suitability in the foreign area
with their personal physician and make any necessary adjustments before
deploying. The contract must also hold the contractor personnel
responsible for the re-supply of required medications.
(e) Comfort items. The contract must require that contractor
personnel take spare hearing-aid batteries, sunglasses, insect
repellent, sunscreen, and any other supplies related to their
individual physical requirements. DoD sources will not provide these
items.
(f) Immunizations. A list of immunizations, both those required for
entry into the designated area of operations and those recommended by
medical authorities, will be produced by the cognizant medical
authority for each deployment; posted to the GCC OCS web page and DoD
FCG; and incorporated in contracts for performance in the designated
AOR.
(1) The GCC, upon the recommendation of the cognizant medical
authority, will provide contractor personnel who are deploying to the
applicable theater of operation guidance and a list of immunizations
required to protect against communicable diseases assessed to be a
potential hazard to their health. The cognizant medical authority will
prepare and maintain this list.
(2) The contract must require that CAAF be immunized appropriately
before completing the pre-deployment process.
(3) During pre-deployment processing, the DoD will provide
contractor personnel, at no cost to the contractor, any theater-
specific immunizations and medications not available to the general
public. Contractor personnel must obtain all other immunizations before
arrival at the deployment center, documented on the International
Certificate of Vaccinations of Prophylaxis as approved by the World
Health Organization or the Department of Health and Human Services
Centers for Disease Control and Prevention Form 731. However, the
contract must stipulate that CAAF and selected non-CAAF obtain all
other necessary immunizations before their arrival at the deployment
center. The TB skin test is required for all contractor personnel
within three months before they are deployed.
(4) The DoD will provide theater-specific medical supplies and
force health protection prescription products to CAAF and selected non-
CAAF. Additionally, these personnel will receive deployment medication
information sheets for all vaccines or deployment-related medications
that are to be dispensed or administered.
(5) Contractors will ensure that individuals with a positive TB
skin test be evaluated for targeted diagnosis and treatment of latent
TB infection in accordance with the procedures outlined in the World
Health Organization Guidelines on the Management of Latent Tuberculosis
Infection.
(6) The contract must stipulate that CAAF and selected non-CAAF
bring a current copy of the International Certificate of Vaccination or
Prophylaxis to the pre-deployment processing center and to the
operational area.
(g) Human Immunodeficiency Virus (HIV) Testing. HIV testing is not
mandatory for contractor personnel unless specified by the GCC CCDR or
by host nation requirements. HIV testing, if required, must occur
within one year before deployment.
(h) Armed Forces Repository of Specimen Samples for the
Identification of Remains (AFRSSIR). For identification of remains
purposes, contractors whose CAAF members are U.S. citizens will obtain
a dental panograph and will forward a specimen sample suitable for DNA
analysis to, and ensure it is on file with, the AFRSSIR before or
during deployment processing and recorded in SPOT-ES. The DoD
Components must ensure that all contracts require CAAF who are U.S.
citizens to provide DNA specimen samples for AFRSSIR as a condition of
deployment. For more information, see paragraph (ll) of appendix A to
this part.
(1) All CAAF who are U.S. citizens processing through a deployment
center will have a DNA specimen sample collected and forwarded to the
AFRSSIR for storage. Contracts must require contractors to verify in
SPOT-ES or its successor that AFRSSIR has received the DNA specimen
sample or that the contractor has collected the DNA specimen sample.
(2) If CAAF who are U.S. citizens do not process through a
deployment center, or the contractor is authorized to process its own
personnel, the contract must require that the contractor collect and
forward DNA specimen samples for all contractor personnel who are
deployed as CAAF to the AFRSSIR. Regardless of what specimen collection
and storage arrangements are made, all contractors deploying CAAF who
are U.S. citizens must provide the CAAF's name and Social Security
number, location of the DNA specimen sample, facility contact
information, and retrieval plan to AFRSSIR. If the AFRSSIR is not used
and a CAAF who is a U.S. citizen becomes a casualty, the contractor
must be able to retrieve identification media for use by the Armed
Forces Medical Examiner (AFME) or other competent authority to conduct
a medical-legal investigation of the incident and identification of the
victim or victims. These records must be retrievable within 24 hours
for forwarding to the AFME when there is a reported incident that would
necessitate their use for identifying human remains. The contractor
shall have access to the location of its employees' fingerprint,
medical, and dental records, including panographs.
(3) AFRSSIR is responsible for implementing special rules and
procedures to ensure the protection of privacy interests in regards to
the specimen samples and any DNA analysis of those samples. Specimen
samples shall only be used for the purposes outlined in paragraph (ll)
of appendix A to this part.
(i) Pre-existing medical conditions. All evaluations of pre-
existing medical conditions should occur before contractor personnel
deploy. Personnel who have pre-existing medical conditions may deploy
if:
(1) The condition is not of such a nature it is likely to have a
medically grave outcome or a negative impact on mission execution if it
unexpectedly worsens.
(2) The condition is stable and reasonably anticipated by the pre-
deployment medical evaluator not to worsen during the deployment under
contractor-provided medical care in-theater in light of the physical,
physiological, psychological, environmental, and nutritional effects of
the duties and location.
(3) Any required ongoing health care or medications must be
available or accessible to contractor personnel, independent of the
military health system, and not be subject to special
[[Page 1078]]
handling, storage, or other requirements (e.g., refrigeration
requirements and/or cold chain, electrical power requirements) that
cannot be met in the specific theater of operations.
(4) The condition does not and is not anticipated to require duty
limitations that would preclude performance of contractual requirements
or to require accommodation by the DoD component or requiring activity.
When necessary, the cognizant medical authority (or delegated
representative) is the appropriate authority to evaluate the
suitability of an individual's limitations in theater.
(5) There is no need for routine out-of-theater evacuation for
continuing diagnostics or other evaluations.
(j) Conditions usually precluding medical clearance. This section
is not intended to be comprehensive. A list of all possible diagnoses,
including relevant severity levels that should preclude approval by the
cognizant medical authority or designee would be too expansive to list
in this part. These are minimum requirements. Contractor personnel may
have additional medical clearance requirements based on their
occupation and local laws. It is the responsibility of the contractor
to ensure that its employees' medical clearances comply with any
applicable local occupation-specific medical requirements.
(1) In general, individuals with the conditions in paragraph (b) of
Sec. 158.7, based on an individual assessment pursuant to paragraph
(bb) of appendix A to this part, will not normally be approved for
deployment to provide contractual support in applicable operations. The
medical evaluator must carefully consider whether climate; altitude;
the nature of available food and housing available; the nature of
medical, behavioral health, and dental services; or other environmental
or operational factors may prove hazardous to the deploying person's
heath because of a known physical or mental condition.
(2) Medical clearance for deployment of persons with any of the
conditions in this section shall be granted by the contracting officer
only after consultation with the appropriate cognizant medical
authority or a designated representative. The cognizant medical
authority makes recommendations and serves as the GCC's advisor on
conditions precluding the medial clearance of deploying personnel;
however, the geographic CCDR is the final approval or disapproval
authority except as provided in paragraph (k)(3) of this section. The
cognizant medical authority or designated representative may determine
if adequate treatment facilities and specialist support are available
at the duty station for:
(i) Physical or psychological conditions resulting in the inability
to wear IPE effectively, if wearing IPE may be reasonably anticipated
or required in the deployed location.
(ii) Conditions that prohibit immunizations or use of force health
protection prescription products required for the specific deployment.
Depending on the applicable threat assessment, required force health
protection prescription products, vaccines, and countermeasures may
include atropine, epinephrine, and/or 2-pam chloride auto-injectors,
certain antimicrobials, antimalarials, and/or pyridostigmine bromide.
(iii) Any chronic medical conditions that require frequent clinical
visits, fail to respond to adequate conservative treatment, or
necessitate significant limitation of physical activity.
(iv) Any medical conditions that require durable medical equipment
or appliances or periodic evaluation or treatment by medical
specialists not readily available in theater (e.g., Continuous Positive
Airway Pressure (CPAP) machine for sleep apnea).
(v) Any unresolved acute or chronic illness or injuries that would
impair duty performance in a deployed environment during the duration
of the deployment.
(vi) Active TB or known blood-borne diseases that may be
transmitted to others in a deployed environment. (For HIV infections,
see paragraph (j)(2)(xvii) of this section.)
(vii) An acute exacerbation of a physical or mental health
condition that could affect duty performance.
(viii) Recurrent loss of consciousness for any reason.
(ix) Any medical condition that could result in sudden
incapacitation including a history of stroke within the last 24 months,
seizure disorders, and diabetes mellitus type I or II, treated with
insulin or oral hypoglycemic agents.
(x) Hypertension not controlled with medication or that requires
frequent monitoring to achieve control.
(xi) Pregnancy.
(xii) Cancers for which individuals are receiving continuing
treatment or that require periodic specialty medical evaluations during
the anticipated duration of the deployment.
(xiii) Precancerous lesions that have not been treated or evaluated
and that require treatment or evaluation during the anticipated
duration of the deployment.
(xiv) Any medical conditions that require surgery or for which
surgery has been performed that requires rehabilitation or additional
surgery to remove devices.
(xv) Asthma that has a Forced Expiratory Volume-1 (FEV-1) of less
than or equal to 50 percent of predicted FEV-1 despite appropriate
therapy, that has required hospitalization at least two times in the
last 12 months, or that requires daily systemic oral or injectable
steroids.
(xvi) Any musculoskeletal conditions that significantly impair
performance of duties in a deployed environment.
(xvii) HIV antibody positive with the presence of progressive
clinical illness or immunological deficiencies. The contracting officer
should consult the cognizant medical authority in all instances of HIV
seropositivity before medical clearance for deployment.
(xviii) Hearing loss. The requirement for use of a hearing aid does
not necessarily preclude deployment. However, the individual must have
sufficient unaided hearing to perform duties safely.
(xix) Loss of vision. Best corrected visual acuity must meet job
requirements to perform duties safely.
(xx) Symptomatic coronary artery disease.
(xxi) History of myocardial infarction within one year of
deployment.
(xxii) History of coronary artery bypass graft, coronary artery
angioplasty, carotid endarterectomy, other arterial stenting, or
aneurysm repair within one year of deployment.
(xxiii) Cardiac dysrhythmias or arrhythmias, either symptomatic or
requiring medical or electrophysiologic control, such as the presence
of an implanted defibrillator and/or pacemaker.
(xxiv) Heart failure.
(xxv) Individuals without a dental exam within the last 12 months
or who are likely to require dental treatment or reevaluation for oral
conditions that are likely to result in dental emergencies within 12
months.
(xxvi) Psychotic and/or bipolar disorders. For detailed guidance on
deployment-limiting psychiatric conditions or psychotropic medications,
see paragraph (mm) of appendix A to this part.
(xxvii) Psychiatric disorders under treatment with fewer than three
months of demonstrated stability.
(xxviii) Clinical psychiatric disorders with residual symptoms that
impair duty performance.
(xxix) Mental health conditions that pose a substantial risk for
deterioration
[[Page 1079]]
or recurrence of impairing symptoms in the deployed environment.
(xxx) Chronic medical conditions that require ongoing treatment
with antipsychotics, lithium, or anticonvulsants.
(k) Exceptions to medical standards (waivers). If a contractor
believes an individual CAAF with one of the conditions listed in
paragraphs (j)(2)(i) through (xxx) of this section can accomplish his
or her tasks and duties and tolerate the environmental and operational
conditions of the deployed location, the contractor may request a
waiver for that individual through the contracting officer to the CCDR
for approval.
(1) It is unlikely that the CCDR will grant waivers for contractor
personnel. Thus, the contractor must provide an explanation as to why
it has no other qualified employees available who meet the medical
standards to fulfill the deployed duties. Contractors will include a
summary of a detailed medical evaluation or consultation concerning the
medical condition or conditions in the requests for waivers. Since
maximization of mission accomplishment and the protection of the health
of personnel are the ultimate goals, justification for the waiver will
include:
(i) Statement indicating the CAAF individual's experience.
(ii) The position the CAAF individual will occupy and the nature
and scope of contractual duties assigned.
(iii) Any known specific hazards of the position.
(iv) Anticipated availability and need for care while deployed.
(v) The benefit expected to accrue from the waiver.
(2) Medical clearance to deploy or continue serving in a deployed
environment for persons with any of the conditions in paragraphs
(j)(2)(i) through (xxx) of this section must have the concurrence of
the cognizant medical authority, or designee, who will recommend
approval or disapproval to the GCC. The GCC, or designee, is the final
decision authority for approvals and disapprovals.
(3) For CAAF employees working with Special Operations Forces
personnel who have conditions in paragraphs (j)(2)(i) through (xxx) of
this section, medical clearance may be granted by the contracting
officer after consultation with the appropriate Theater Special
Operations Command (TSOC) surgeon. The TSOC surgeon, in coordination
with the CCMD cognizant medical authority and senior in-theater medical
authority, will ascertain the capability and availability of treatment
facilities and specialist support in the general duty area versus the
operational criticality of the particular SOF member. The TSOC surgeon
will recommend approval or disapproval to the TSOC Commander. The TSOC
Commander is the final approval or disapproval authority.
Appendix A to Part 158--Related Policies
The Operational Contract Support Outside the United States
Program is supported by the following policies:
(a) DoD Directive 5124.02, ``Under Secretary of Defense for
Personnel and Readiness (USD(P&R))'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/512402p.pdf).
(b) DoD Instruction 1100.22, ``Policy and Procedures for
Determining Workforce Mix'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/110022p.pdf).
(c) DoD Directive 1000.20, ``Active Duty Service Determinations
for Civilian or Contractual Groups'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/100020p.pdf).
(d) DoD Instruction, ``Combating Trafficking in Persons (CTIP)''
(available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/220001p.pdf).
(e) DoD Law of War Manual (June 2015, Updated Dec. 2016)
(available at https://ogc.osd.mil/images/law_war_manual_december_16.pdf).
(f) DoD Instruction 1000.01, ``Identification (ID) Cards
Required by the Geneva Conventions'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/100001p.pdf).
(g) DoD Instruction 1000.13, ``Identification (ID) Cards for
Members of the Uniformed Services, Their Dependents, and Other
Eligible Individuals'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/100013p.pdf).
(h) DoD Manual 1000.13, ``DoD Identification (ID) Cards: ID Card
Life-Cycle'' Volume 1 (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodm/100013_vol1.pdf).
(i) DoD Manual 1000.13, ``DoD Identification (ID) Cards: ID Card
Life-Cycle'', Volume 2 (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodm/100013_vol2.pdf).
(j) DoD Directive 1300.22, ``Mortuary Affairs Policy''
(available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/130022p.pdf).
(k) DoD Instruction 1300.18, ``Department of Defense (DoD)
Personnel Casualty Matters, Policies, and Procedures'' (available at
https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/130018p.pdf).
(l) DoD Instruction 4515.13, ``Air Transportation Eligibility''
(available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/451513p.PDF).
(m) DoD Instruction 6200.03, ``Public Health Emergency
Management (PHEM) within the DoD'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/620003p.pdf).
(n) DoD Instruction 6000.11, ``Patient Movement (PM)''
(available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/600011p.pdf).
(o) DoD 4525.6-M, ``Department of Defense Postal Manual''
(available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodm/452506m.pdf).
(p) DoD Instruction 1015.10, ``Military Morale, Welfare, and
Recreation (MWR) Programs'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/101510p.pdf).
(q) DoD Directive 1330.21, ``Armed Services Exchange
Regulations'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/133021p.pdf).
(r) DoD Directive 5160.41E, ``Defense Language, Regional
Expertise, and Culture (LREC) Program'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/516041Ep.pdf).
(s) Synchronized Predeployment and Operational Tracker (SPOT)
Business Rules (available at https://www.acq.osd.mil/LOG/PS/spot.html).
(t) DoD 5400.11-R, ``Department of Defense Privacy Program''
(available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodm/540011r.pdf).
(u) DoD Manual 6025.18, ``Implementation of the Health Insurance
Portability and Accountability Act (HIPPA) Privacy Rule in DoD
Health Care Programs'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodm/602518m.pdf).
(v) DoD Directive 8000.01, ``Management of the Department of
Defense Information Enterprise (DoD IE)'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/800001p.pdf).
(w) DoD Instruction 8320.02, ``Sharing Data, Information, and
Information Technology (IT) Services in the Department of Defense''
(available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/832002p.pdf).
(x) DoD Instruction 8330.01, ``Interoperability of Information
Technology (IT), Including National Security Systems (NSS)''
(available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/833001p.pdf).
(y) DoD Instruction 8500.01, ``Cybersecurity'' (available at
https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/850001_2014.pdf).
(z) DoD Directive 4500.54E, ``DoD Foreign Clearance Program
(FCP)'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/450054E.pdf).
(aa) DoD Directive 6485.02E, ``DoD Human Immunodeficiency Virus
(HIV)/Acquired Immune Deficiency Syndrome (AIDS) Prevention Program
(DHAPP) to Support Foreign Militaries'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/648502E.pdf).
(bb) DoD Instruction 6490.03, ``Deployment Health'' (available
at https://
[[Page 1080]]
www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/649003p.pdf).
(cc) DoD Directive 6490.02E, ``Comprehensive Health
Surveillance'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/649002Ep.pdf).
(dd) CJCS Instruction 3500.01H, ``Joint Training Policy for the
Armed Forces of the United States'' (available at https://www.jcs.mil/Portals/36/Documents/Library/Instructions/3500_01.pdf).
(ee) DoD Instruction 2000.12, ``DoD Antiterrorism (AT) Program''
(available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/200012p.pdf).
(ff) DoD Directive 2310.01, ``DoD Detainee Program'' (available
at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/231001e.pdf).
(gg) DoD Directive 2311.01, ``DoD Law of War Program''
(available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/231101e.pdf).
(hh) DoD Directive 3115.09, ``DoD Intelligence Interrogations,
Detainee Debriefings, and Tactical Questioning'' (available at
https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/311509p.pdf).
(ii) DoDD 3002.01, ``Personnel Recovery in the Department of
Defense'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/300201p.pdf).
(jj) DoD Instruction 3002.03, ``DoD Personnel Recovery--
Reintegration of Recovered Personnel'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/300203p.pdf).
(kk) DoD Directive 6200.04, ``Force Health Protection (FHP)''
(available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/620004p.pdf).
(ll) DoD Instruction 5154.30, ``Armed Forces Medical Examiner
System (AFMES) Operations'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/515430p.pdf).
(mm) Assistant Secretary of Defense for Health Affairs
Memorandum, ``Policy Guidance for Deployment-Limiting Psychiatric
Conditions and Medications,'' November 7, 2006 (available at http://www.ha.osd.mil/policies/2006/061107_deployment-limiting_psych_conditions_meds.pdf).
Dated: October 30, 2020.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2020-27694 Filed 1-6-21; 8:45 am]
BILLING CODE 5001-06-P