AFARS-Deployment of Contractor Personnel

[Federal Register: November 28, 2003 (Volume 68, Number 229)]
[Rules and Regulations]
[Page 66738-66740]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28no03-14]

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DEPARTMENT OF DEFENSE

Department of the Army

48 CFR Part 5125

RIN 0702-AA38

Foreign Acquisition

AGENCY: Department of Army, DoD.

ACTION: Interim final rule; request for comments.

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SUMMARY: The Department of the Army is amending the Department of the
Army Acquisition Regulations (also referred to as the Army Federal
Acquisition Regulation Supplement (AFARS)) to increase consistency in
Army contracts that may require deployment of contractor personnel.
This change is a consolidation and summarization of current information

[[Page 66739]]

available in several documents, some of which are currently in draft
form, and does not include new Army contracting policy. The purpose of
this issuance is to notify interested parties of this change, and to
request the public's comments. This change is issued by the Assistant
Secretary of the Army (Acquisition, Logistics, and Technology)
(ASA(ALT)). This issuance is made concurrent with publication of an
interim rule with request for comments to Solicitations Provisions and
Contract Clauses, published in this issue of the Federal Register.

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

ADDRESSES: Respondents may e-mail comments to: s.wisniewski@us.army.mil. Those who cannot submit comments by e-mail
may submit comments to: Procurement Policy and Support Office, Attn:
SAAL-PP, Sharon Wisniewski, Presidential Towers, 2511 S. Jeff Davis
Highway, Arlington, VA, 22202, facsimile (703) 604-8178. Please cite
“AFARS CAF Clause” in the subject line of comments.

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

SUPPLEMENTARY INFORMATION:

A. Background

This interim rule is added to incorporate information to facilitate
deploying contractor personnel to Iraq or other areas of operations. It
also seeks to ease the administrative difficulty for each contractor
and contracting office researching current guidance on contractors
accompanying the force, and to increase consistency among Army
contracts. This AFARS change is published to address contractor and
Army contracting offices' questions and concerns. This rule was not
subject to Office of Management and Budget review under Executive Order
12866, dated September 30, 1993.

B. Regulatory Flexibility Act

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

C. Paperwork Reduction Act

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

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

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

Emily Clarke,
Director, Procurement Policy and Support.

List of Subjects in 48 CFR Part 5125

Government contracts, Government procurement.

0
For the reasons stated in the preamble, the Department of the Army adds
48 CFR part 5125 to read as follows:

PART 5125--FOREIGN ACQUISITION

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

Subpart 5125.74-9000--Contractors Accompanying the Force--
Deployment of Contractor Personnel in Support of Military
Operations

Scope of Subpart

(a) General. This subpart applies whenever contractors may be
required to accompany the force in support of military operations, as
defined in Joint Publication 1-02, “DOD Dictionary of Military and
Associated Terms.”
(b) Coordination. There are many operational details that will
affect the scope of work in contracts requiring deployment of
contractor personnel in support of military operations. The
requirements activity, in conjunction with the contracting activity,
must coordinate with the appropriate logistics organization to
determine what level of support (e.g., billeting, messing, clothing and
equipment, access to medical facilities, pre-deployment processing)
will be available to contractors.
(i) DFARS 225.802-70 (Contracts for performance outside the United
States and Canada) prescribes special procedures applicable to
contracts requiring the performance of work in a foreign country by
U.S. personnel or a third country contractor, or that will require
logistics support for contractor employees, and the contracting
activity is not under the command jurisdiction of a unified or
specified command for the country involved. This provision generally
requires the contracting activity to undertake certain coordination
with the cognizant contract administration office for that country.
(ii) In situations where no contract administration office has been
designated, the contracting officer shall ensure, prior to contract
award, that the responsible combatant command concurs with any contract
provision that promises logistical support to U.S. or foreign national
contractor personnel. This requirement may be satisfied through a
memorandum executed by the requiring activity that documents combatant
command approval of any logistical support specified in the main body
of the contract or its statement of work.
(c) Legal status of contractor personnel. The Status of Forces
Agreements applicable to the Area of Operations (AO), as well as the
Geneva Conventions and other international laws govern the legal status
of contractor personnel. Contractor personnel's legal status will vary
depending on the location and circumstances surrounding an incident.
(d) Requirements offices and contracting officers should use the
Army Contractors Accompanying the Force Guidebook for more detailed
guidance, including sample contract language, and a listing of Army and
DoD regulations and other resources. Contracting Officers may tailor
this language as appropriate, but using the Guidebook will both answer
many

[[Page 66740]]

common questions and foster uniform handling of common issues. The
Guidebook may be found on the Deputy Assistant Secretary of the Army
(Procurement & Production) Web site at http://dasapp.saalt.army.mil/.
(e) Solicitation provision and contract clause. The clause at Sec.
5152.225-74-9000 shall be inserted in all solicitations and contracts
that may require deployment of contractor personnel in support of
military operations. It may be tailored to fit the specific
circumstances of the procurement.

[FR Doc. 03-29416 Filed 11-26-03; 8:45 am]

BILLING CODE 3710-08-P
[Federal Register: November 28, 2003 (Volume 68, Number 229)]
[Rules and Regulations]
[Page 66740-66741]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28no03-15]

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DEPARTMENT OF DEFENSE

Department of the Army

48 CFR Part 5152

RIN 0702-AA39

Solicitation Provisions and Contract Clauses

AGENCY: Department of Army, DOD.

ACTION: Interim final rule; Request for comments.

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

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

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

SUPPLEMENTARY INFORMATION:

A. Background

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

B. Regulatory Flexibility Act

C. Paperwork Reduction Act

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

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

Emily Clarke,
Director, Procurement Policy and Support.

List of Subjects in 48 CFR Part 5152

Government contracts, Government procurement.

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

PART 5152--SOLICITATIONS PROVISIONS AND CONTRACT CLAUSES

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

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

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

5152.225-74-9000 Contractors Accompanying the Force.

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

CONTRACTORS ACCOMPANYING THE FORCE (NOV. 2003)

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

[[Page 66741]]

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

(End of Clause)

[FR Doc. 03-29417 Filed 11-26-03; 8:45 am]

BILLING CODE 3710-08-P