[Federal Register Volume 76, Number 250 (Thursday, December 29, 2011)]
[Rules and Regulations]
[Pages 81807-81825]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-33107]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 158
[Docket ID DOD-2009-OS-0029]
RIN 0790-AI48
Operational Contract Support
AGENCY: Department of Defense (DoD).
ACTION: Interim final rule.
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SUMMARY: This part establishes policy, assigns responsibilities, and
provides procedures for operational contract support (OCS), including
OCS program management, contract support integration, and integration
of defense contractor personnel into contingency operations outside the
United States.
An interim final rule is required to procedurally close gaps and
ensure the correct planning, oversight and management of DoD
contractors supporting contingency operations, by updating the existing
outdated policy. The existing policies are causing significant
confusion, as they do not reflect current practices and legislative
mandates. The inconsistencies between local Geographic Command guidance
and the DoD-wide policies and the Defense Federal Acquisition
Regulations Supplement are confusing for those in the field--in
particular, with regard to policy on accountability and visibility
requirements. Given 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 the counter-insurgency
operation in Afghanistan; and, the requirement to effectively manage
contractors during the transition in Iraq, this issue has become so
significant that DoD needs to revise the DoD-wide policies as a matter
of urgency.
DATES: This rule is effective December 29, 2011. Comments must be
received by February 27, 2012.
ADDRESSES: You may submit comments, identified by docket number and or/
RIN number and title, by any of the following methods:
Federal Rulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Federal Docket Management System Office, 4800 Mark
Center Drive, 2nd floor, East Tower, Suite 02G09, Alexandria, VA 22350-
3100.
Instructions: All submissions received must include the agency name
and docket number or Regulatory Information Number (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: Shanna Poole, (703) 692-3032.
SUPPLEMENTARY INFORMATION: The revised policies include: (1)
Incorporation of lessons learned from current operations; (2)
requirements for the development of contractor oversight plans; (3)
requirements for adequate military personnel necessary to execute
contract oversight; and, (4) standards of medical care for deployed
contractors.
Regulatory Procedures
Executive Order 12866, ``Regulatory Planning and Review'' and Executive
Order 13563, ``Improving Regulation and Regulatory Review''
It has been certified that 32 CFR part 158 does not:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy; a section of the
economy; productivity; competition; jobs; the environment; public
health or safety; or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another Agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs, or the rights and obligations of
recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
these Executive Orders.
Section 202, Pub. L. 104-4, ``Unfunded Mandates Reform Act''
It has been certified that 32 CFR part 158 does not contain a
Federal mandate that may result in expenditure by State, local and
tribal governments, in aggregate, or by the private sector, of $100
million or more in any one year.
Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)
It has been certified that 32 CFR part 158 is not subject to the
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if
promulgated, have a significant economic impact on a substantial number
of small entities.
[[Page 81808]]
Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)
It has been certified that 32 CFR part 158 does impose reporting or
recordkeeping requirements under the Paperwork Reduction Act of 1995.
These reporting requirements have been approved by OMB under OMB
Control Number 0704-0460, Synchronized Predeployment and Operational
Tracker (SPOT) System. DOD does not believe this interim rule will
require a change in burden or a change in the information collected.
DoD cleared the SPOT collection with the interim rule codified at 32
CFR part 159 (which concerned U.S. government private security
contractors (USG PSCs)). The SPOT collection package encapsulated the
requirement for all DoD contingency contractor personnel to register in
the SPOT database--not just USG PSCs. The publication of this rule has
no impact on the extant requirement for contractors to use SPOT.
Executive Order 13132, ``Federalism''
It has been certified that 32 CFR part 158 does not have federalism
implications, as set forth in Executive Order 13132. This rule does not
have substantial direct effects on:
(1) The States;
(2) The relationship between the National Government and the
States; or
(3) The distribution of power and responsibilities among the
various levels of Government.
List of Subjects in 32 CFR Part 158
Armed forces, Government contracts, Health and safety, Military
personnel, National defense, Passports and visas, Recordkeeping,
Security measures.
Accordingly, 32 CFR part 158 is added to read as follows:
PART 158--OPERATIONAL CONTRACT SUPPORT
Sec.
158.1 Purpose.
158.2 Applicability.
158.3 Definitions.
158.4 Policy.
158.5 Responsibilities.
158.6 Procedures.
158.7 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
OCS program management, contract support integration, and integration
of defense contractor personnel into contingency operations outside the
United States in accordance with the guidance in DoD Directive 3020.49
(see http://www.dtic.mil/whs/directives/corres/pdf/302049p.pdf) and the
authority in DOD Directive 5134.01 (see http://www.dtic.mil/whs/directives/corres/pdf/513401p.pdf).
Sec. 158.2 Applicability.
This part applies to:
(a) The Office of the Secretary of Defense, the Military
Departments, the Office of the Chairman of the Joint Chiefs of Staff
and the Joint Staff, the Combatant Commands, the Office of the
Inspector General of the Department of Defense, the Defense agencies,
the DoD field activities, and all other organizational entities within
the Department of Defense (hereinafter referred to collectively as the
``DoD Components'').
(b) DoD operations (contingency, humanitarian assistance, and other
peace operations) outside the United States; other military operations
as determined by a Combatant Commander (CCDR); or as directed by the
Secretary of Defense (hereinafter referred to collectively as
``applicable contingency operations'').
Sec. 158.3 Definitions.
Unless otherwise noted, the following terms and their definitions
are for the purposes of this part.
Acquisition. Defined in 48 CFR 2.101.
Contingency acquisition. The process of acquiring supplies,
services, and construction in support of contingency operations.
Contingency contract. A legally binding agreement for supplies,
services, and construction let by Government contracting officers in
the operational area, as well as other contracts that have a prescribed
area of performance within a designated operational area. Contingency
contracts include theater support, external support, and systems
support contracts.
Contingency contractor personnel. Individual contractors,
individual subcontractors at all tiers, contractor employees, and sub-
contractor employees at all tiers under all contracts supporting the
Military Services during contingency operations.
Contingency operation. Defined in Joint Publication 1-02 (see
http://www.dtic.mil/doctrine/new_pubs/jp1_02.pdf).
Contingency program management. The process of planning,
organizing, staffing, controlling, and leading the operational contract
support (OCS) efforts to meet joint force commander (JFC) objectives.
Contract administration. A subset of contracting that includes
efforts that ensure supplies and services are delivered in accordance
with the conditions and standards expressed in the contract. Contract
administration is the oversight function, from contract award to
contract closeout, performed by contracting professionals and
designated non-contracting personnel.
Contract administration delegation. A CCDR policy or process
related to theater business clearance that allows the CCDR to exercise
control over the assignment of contract administration for that portion
of contracted effort that relates to performance in, or delivery to,
designated area(s) of operations and allows the CCDR to exercise
oversight to ensure the contractor's compliance with CCDR and
subordinate task force commander policies, directives, and terms and
conditions. Whether the CCDR chooses to implement such a process
depends on the situation.
Contracting. Defined in 48 CFR 2.101.
Contracting officer. Defined in 48 CFR 2.101.
Contracting Officer's Representative (COR). Defined in 48 CFR
202.101.
Contractor management. The oversight and integration of contractor
personnel and associated equipment providing support to the joint force
in a designated operational area.
Contractors Authorized to Accompany the Force (CAAF). Contractor
personnel, including all tiers of subcontractor personnel, who are
authorized to accompany the force in applicable contingency operations
and who have been afforded CAAF status through 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 U.S. forces
and who routinely are co-located with U.S. forces (especially in non-
permissive environments). Personnel co-located with U.S. forces shall
be afforded CAAF status through LOA. In some cases, CCDR subordinate
commanders may designate mission-essential Host Nation (HN) or Local
national (LN) contractor employees (e.g., interpreters) as CAAF. CAAF
includes contractors identified as contractors deploying with the force
in DoD Instruction 3020.41 and DoD Directive 3002.01E (see http://www.dtic.mil/whs/directives/corres/pdf/300201p.pdf). CAAF status does
not apply to contractor personnel in support of contingencies within
the boundaries and territories of the United States.
Defense contractor. Any individual, firm, corporation, partnership,
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association, or other legal non-Federal entity that enters into a
contract directly with the DoD to furnish services, supplies, or
construction. Foreign governments, representatives of foreign
governments, or foreign corporations wholly owned by foreign
governments that have entered into contracts with the DoD are not
defense contractors.
Designated reception site. The organization responsible for the
reception, staging, integration, and onward movement of contractors
deploying during a contingency. The designated reception site includes
assigned joint reception centers and other Service or private reception
sites.
Essential contractor service. A service provided by a firm or an
individual under contract to the DoD to support vital systems including
ships owned, leased, or operated in support of military missions or
roles at sea and associated support activities, including installation,
garrison, base support, and linguist/translator services considered of
utmost importance to the U.S. mobilization and wartime mission. The
term also includes services provided to Foreign Military Sales
customers under the Security Assistance Program. Services are
considered essential because:
(1) The DoD Components may not have military or DoD civilian
employees to perform the services immediately.
(2) The effectiveness of defense systems or operations may be
seriously impaired and interruption is unacceptable when the services
are not available immediately.
External support contracts. Prearranged contracts or contracts
awarded during a contingency from contracting organizations whose
contracting authority does not derive directly from theater support or
systems support contracting authorities.
Functional Combatant Commands. U.S. Joint Forces Command (USJFCOM),
U.S. Special Operations Command, U.S. Strategic Command, and U.S.
Transportation Command.
Geographic Combatant Commands. U.S. Africa Command, U.S. Central
Command, U.S. European Command, U.S. Northern Command, U.S. Pacific
Command, and U.S. Southern Command.
Hostile environment. Defined in Joint Publication 1-02.
Host nation (HN). A nation that permits, either by written
agreement or official invitation, government representatives and/or
agencies of another nation to operate, under specified conditions,
within its borders.
Letter of authorization (LOA). A document issued by a procuring
contracting officer or designee that authorizes contractor personnel to
accompany the force to travel to, from, and within an operational area,
and outlines Government-furnished support authorizations within the
operational area, as agreed to under the terms and conditions of the
contract. For more information, see 48 CFR PGI 225.74.
Local national (LN). An individual who is a permanent resident of
the nation in which the United States is conducting contingency
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.
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 U.S. 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, U.S. forces. Government-furnished support to non-CAAF
is typically limited to force protection, emergency medical care, and
basic human needs (e.g., bottled water, latrine facilities, security,
and food when necessary) when performing their jobs in the direct
vicinity of U.S. forces.
Operational contract support (OCS). The ability to orchestrate and
synchronize the provision of integrated contract support and management
of contractor personnel providing support to the joint force within a
designated operational area.
Prime contract. Defined in 48 CFR 3.502.
Qualifying contingency operation. In accordance with Article
2(a)(10) of the Uniform Code of Military Justice (UCMJ) (see http://www.au.af.mil/au/awc/awcgate/ucmj.htm), a military contingency
operation conducted for the purpose of engaging an enemy or a hostile
force in combat where disciplinary authority over civilians under
Article 2(a)(10) is governed by the UCMJ, the Secretary of Defense
Memorandum, ``UCMJ Jurisdiction Over DoD Civilian Employees, DoD
Contractor Personnel, and Other Persons Serving With or Accompanying
the Armed Forces Overseas During Declared War and in Contingency
Operations,'' dated March 10, 2008 (see http://www.dtic.mil/whs/directives/corres/pdf/DTM-08-009.pdf), and the Manual for Courts-
Martial, United States, current edition (see http://www.au.af.mil/au/awc/awcgate/law/mcm.pdf).
Replacement center. The centers at selected installations that
ensure personnel readiness processing actions have been completed prior
to an individual reporting to the aerial port of embarkation for
deployment to a designated operational area.
Requiring activity. The organization charged with meeting the
mission and delivering the requirements the contract supports. This
activity is responsible for delivering the services to meet the mission
if the contract is not in effect. The requiring activity may also be
the organizational unit that submits a written requirement, or
statement of need, for services required by a contract. This activity
is responsible for ensuring compliance with DoD Instruction 1100.22
(see http://www.dtic.mil/whs/directives/corres/pdf/110022p.pdf) and
Deputy Secretary of Defense Memorandums, ``In-sourcing Contracted
Services--Implementation Guidance'' dated May 28, 2009, and
``Implementation of Section 324 of the National Defense Authorization
Act for Fiscal Year 2008 (FY 2008 NDAA)--Guidelines and Procedures on
In-Sourcing New and Contracted Out Functions'' dated April 4, 2008 (for
both Deputy Secretary of Defense Memorandums see http://prhome.defense.gov/RSI/REQUIREMENTS/INSOURCE/INSOURCE_GUIDANCE.ASPX).
Subcontract. Defined in 48 CFR 3.502.
Systems support contracts. Prearranged contracts awarded by 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.
Systems support contracts routinely are put in place to provide support
to many newly fielded weapons systems, including aircraft, land combat
vehicles, and automated command and control systems. Systems support
contracting authority, contract management authority, and program
management authority reside with the Service system materiel
acquisition program offices. Systems support contractors, made up
mostly of U.S. citizens, provide support in continental U.S. (CONUS)
and often deploy with the force in both training and contingency
operations. The JFC generally has less control over systems support
contracts than other types of contracts.
Theater business clearance. A CCDR policy or process to ensure
visibility of and a level of control over systems support and external
support contracts
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executing or delivering support in designated area(s) of operations.
The breadth and depth of such requirements will be situational. Theater
business clearance is not necessarily discrete and can be implemented
to varying degrees on a continuum during all phases of an operation.
Theater support contracts. Contingency contracts awarded by
contracting officers deployed to an operational area serving under the
direct contracting authority of the Service component, special
operations force command, or designated joint contracting authority for
the designated contingency operation.
Uniquely military functions. Defined in DoD Instruction 1100.22,
``Policy and Procedures for Determining Workforce Mix.''
Sec. 158.4 Policy.
It is DoD policy that:
(a) OCS actions (e.g., planning, accountability, visibility,
deployment, protection, and redeployment requirements) shall be
implemented to:
(1) Incorporate appropriate contingency program management
processes during applicable contingency operations.
(2) Comply with applicable U.S., international, and local laws,
regulations, policies, and agreements.
(3) Use contract support only in appropriate situations consistent
with 48 CFR subpart 7.5, 48 CFR 207.503, and DoD Instruction 1100.22,
``Policy and Procedures for Determining Workforce Mix.''
(4) Fully consider, plan for, integrate, and execute acquisition
of, contracted support, including synchronizing and integrating
contracted support flowing into an operational area from systems
support, external support and theater support contracts and managing
the associated contractor personnel, into applicable contingency
operations consistent with CCDR policies and procedures and Joint
Publication (JP) 4-10, ``Operational Contract Support,'' (see http://www.dtic.mil/doctrine/new_pubs/jp4_10.pdf).
(b) Contractors are generally responsible for providing their own
logistical support. However, in austere, uncertain, and/or hostile
environments, the DoD may provide logistical support to ensure
continuation of essential contractor services. CAAF may receive
Government-furnished support commensurate with the operational
situation in accordance with the terms and conditions of their
contract.
(c) Contracting officers will ensure that contracts used to support
DoD operations require:
(1) That CAAF deploying from outside the operational area be
processed through formal deployment (replacement) centers or a DoD-
approved equivalent process prior to departure, and through in-theater
reception centers upon arrival in the operational area, as specified in
Sec. 158.6 of this part.
(2) That contractors provide personnel who are medically, dentally,
and psychologically fit, and if applicable, professionally tested and
certified, to perform contract duties in applicable contingency
operations. Section 158.6 of this part details medical support and
evacuation procedures. Section 158.7 of this part provides guidance on
contractor medical, psychological, and dental fitness.
(3) Solicitations and contracts address any applicable host country
and designated operational area performance considerations.
(d) Contracts for highly sensitive, classified, cryptologic, and
intelligence projects and programs shall implement this part to the
maximum extent practicable, consistent with applicable laws, Executive
orders, Presidential Directives, and DoD issuances.
(e) In applicable contingency operations, contractor visibility and
accountability shall be maintained through a common joint database, the
Synchronized Predeployment and Operational Tracker (SPOT) or its
successor.
Sec. 158.5 Responsibilities.
(a) The Under Secretary of Defense for Acquisition, Technology, and
Logistics (USD(AT&L)) shall develop, coordinate, establish, and oversee
the implementation of DoD policy for managing OCS.
(b) The Director, Defense Procurement and Acquisition Policy
(DPAP), under the authority, direction, and control of the USD(AT&L),
shall:
(1) Oversee all acquisition and procurement policy matters
including the development of DoD policies for contingency contracting
and the coordinated development and publication of contract
prescriptions and standardized contract clauses in 48 CFR 207.503,
252.225-7040, and 202.101, and associated contracting officer guidance
in 48 CFR PGI 225.74. This includes working collaboratively with OSD
Principal Staff Assistants, Chairman of the Joint Chiefs of Staff
(CJCS) representatives, and the DoD Component Heads in the development
of OCS related policies and ensuring that contracting equities are
addressed.
(2) Develop contingency contracting policy and implement other OCS
related policies into DFARS in support of applicable contingency
operations.
(3) Ensure implementation by contracting officers and CORs of
relevant laws and policies in 48 CFR Subparts 4.1301, 4.1303, 52.204-9,
7.5, 7.503(e), 2.101, and 3.502; 48 CFR Subparts 207.503, 252.225-7040
and 202.101; and 48 CFR PGI 225.74.
(4) Propose legislative initiatives that support accomplishment of
the contingency contracting mission.
(5) Improve DoD business processes for contingency contracting
while working in conjunction with senior procurement executives across
the DoD. Assist other OSD Principal Staff Assistants, CJCS
representatives, and DoD Component Heads in efforts to improve other
OCS related business processes by ensuring contracting equities and
interrelationships are properly addressed.
(6) Support efforts to resource the OCS toolset under the lead of
the Deputy Assistant Secretary of Defense for Program Support
(DASD(PS)) pursuant to paragraph (c)(6)(ii) of this section.
(7) Coordinate activities with other Government agencies to provide
unity of effort. Maintain an open, user-friendly source for reports and
lessons learned and ensure the coordinated development and publication,
through participation on the FAR Council, of standardized contract
clauses.
(8) As a member of the Contracting Functional Integrated Planning
Team, collaborate with the Defense Acquisition University to offer
education for all contingency contracting personnel.
(9) Participate in the OCS Functional Capability Integration Board
(FCIB) to facilitate development of standard joint OCS concepts,
policies, doctrine, processes, plans, programs, tools, reporting, and
training to improve effectiveness and efficiency.
(10) In concert with the supported Combatant Commander, coordinate
in advance of execution Executive Agency for Head of Contracting
Activity requisite Operational Plans (OPLANS), Concept Plans
(CONPLANS), and operations, where a lead service or a Joint Theater
Support Contracting Command (JTSCC) will be established.
(c) The DASD(PS), under the authority, direction, and control of
the USD(AT&L) through the Assistant Security of Defense for Logistics
and Materiel Readiness (ASD(L&MR)), is responsible for oversight and
management to enable the orchestration, integration, and
synchronization of the preparation and execution of
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acquisitions for DoD contingency operations, and shall:
(1) Coordinate policy relating to field operations and contingency
contractor personnel in forward areas and the battlespace. In
cooperation with the Joint Staff, Military Departments, and OSD, serve
as the DoD focal point for the community of practice and the community
of interest for efforts to improve OCS program management and
oversight.
(2) Co-chair with the Vice Director, Directorate for Logistics,
Joint Staff, (VDJ4) the OCS FCIB to lead and coordinate OCS with OSD,
Military Department, and Defense Agency senior procurement officers in
accordance with the OCS FCIB Charter (see http://www.acq.osd.mil/log/PS/fcib/OCS_FCIB_charter_USA000737-09_signed.pdf).
(3) Ensure integration of joint OCS activities across other joint
capability areas and joint warfighting functions.
(4) Provide input to the Logistics Capability Portfolio Manager and
the CJCS in the development of capability priorities; review final
capability priorities; and provide advice to the Under Secretary of
Defense for Policy (USD(P)) in developing the Quadrennial Defense
Review (see http://www.defense.gov/qdr/images/QDR_as_of_12Feb10_1000.pdf) and defense planning and programming guidance, as
appropriate.
(5) Serve as the DoD lead to:
(i) Develop a programmatic approach for the preparation and
execution of orchestrating, integrating, and synchronizing acquisitions
for contingency operations.
(ii) Establish and oversee DoD policies for OCS program management
in the planning and execution of combat, post-combat, and other
contingency operations involving the Military Departments, other
Government agencies, multinational forces, and non-governmental
organizations, as required.
(6) Improve DoD business practices for OCS.
(i) In consultation with the Under Secretary of Defense for
Personnel and Readiness (USD(P&R)); the Director, DPAP; and the CJCS,
ensure a joint web-based contract visibility and contractor personnel
accountability system (currently SPOT) is designated and implemented,
including business rules for its use.
(ii) Lead the effort to resource the OCS toolset providing improved
OCS program management, planning, OCS preparation of the battlefield,
systems support, and theater support contracts, contractor
accountability systems, and automated contract process capabilities,
including reach back from remote locations to the national defense
contract base (e.g., hardware and software).
(7) In consultation with the Heads of the OSD and DoD Components,
provide oversight of experimentation efforts focusing on concept
development for OCS execution.
(8) Serve as the DoD lead for the oversight of training and
education of non-acquisition, non-contracting personnel identified to
support OCS efforts.
(d) The Director, DLA, under the authority, direction, and control
of the USD(AT&L), through the ASD(L&MR) shall, through the Joint
Contingency Acquisition Support Office (JCASO), provide enabler OCS
support to CCDR OCS planning efforts and training events, and, when
requested, advise, assist, and support JFC oversight of OCS operations.
Specifically, the Director, JCASO, shall:
(1) Provide OCS planning support to the CCDR through Joint OCS
Planners embedded within the geographic Combatant Command staff.
Maintain situational awareness of all plans with significant OCS equity
for the purposes of exercise support and preparation for operational
deployment. From JCASO forward involvement in exercises and operational
deployments, develop and submit lessons learned that result in improved
best practices and planning.
(2) When requested, assist the Joint Staff in support of the
Chairman's OCS responsibilities listed in paragraph (l) of this
section.
(3) Facilitate improvement in OCS planning and execution through
capture and review of joint OCS lessons learned. In cooperation with
USJFCOM, Military Services, other DoD Components, and interagency
partners, collect joint operations focused OCS lessons learned and best
practices from contingency operations and exercises to inform OCS
policy and recommend doctrine, organization, training, materiel,
leadership, personnel, and facilities (DOTMLPF) solutions.
(4) Participate in joint exercises, derive OCS best practices from
after-action reports and refine tactics/techniques/procedures,
deployment drills, and personal and functional training (to include
curriculum reviews and recommendations). Assist in the improvement of
OCS related policy, doctrine, rules, tools, and processes.
(5) Provide the geographic CCDRs, when requested, with deployable
experts to assist the CCDR and subordinate JFCs in managing OCS
requirements in a contingency environment.
(6) Practice continuous OCS-related engagement with interagency
representatives and multinational partners, as appropriate and
consistent with existing authorities.
(7) Participate in the OCS FCIB to facilitate development of
standard joint OCS concepts, policies, doctrine, processes, plans,
programs, tools, reporting, and training to improve effectiveness and
efficiency.
(e) The Director, Defense Contract Management Agency (DCMA) under
the authority, direction, and control of the USD(AT&L), through the
Assistant Secretary of Defense for Acquisition (ASD(Acquisition)),
plans for and performs contingency contract administration services in
support of the CJCS and CCDRs in the planning and execution of military
operations, consistent with DCMA's established responsibilities and
functions.
(f) The Under Secretary of Defense for Intelligence (USD(I)), as
the Principal Staff Assistant for intelligence, counterintelligence,
and security in accordance with DoD Directive 5143.01 (see http://www.dtic.mil/whs/directives/corres/pdf/514301p.pdf), shall:
(1) Develop, coordinate, and oversee the implementation of DoD
security programs and guidance for those contractors covered in DoD
Instruction 5220.22 (see http://www.dtic.mil/whs/directives/corres/pdf/522022p.pdf.
(2) Assist the USD(AT&L) in determining appropriate contract
clauses for intelligence, counterintelligence, and security
requirements.
(3) Establish policy for contractor employees under the terms of
the applicable contracts that support background investigations in
compliance with 48 CFR 4.1301, 4.1303, and 52.204-9.
(4) Coordinate security and counterintelligence policy affecting
contract linguists with the Secretary of the Army pursuant to DoD
Directive 5160.41E (see http://www.dtic.mil/whs/directives/corres/pdf/516041p.pdf) .
(g) The Assistant Secretary of Defense for Health Affairs
(ASD(HA)), under the authority, direction, and control of the USD(P&R),
shall assist in the development of policy addressing the reimbursement
of funds for qualifying medical support received by contingency
contractor personnel in applicable contingency operations.
(h) The Deputy Assistant Secretary of Defense for Readiness
(DASD(Readiness)) under the authority, direction, and control of the
USD(P&R), shall develop policy and set standards for managing contract
linguist capabilities supporting the total force to
[[Page 81812]]
include requirements for linguists and tracking linguist and role
players to ensure that force readiness and security requirements are
met.
(i) The Director, Defense Manpower Data Center (DMDC), under the
authority, direction, and control of the USD(P&R), through the
Director, DoD Human Resources Activity, shall:
(1) Serve as the central repository of information for all
historical data on contractor personnel who have been issued common
access cards (CAC) and are included in SPOT or its successor, that is
to be archived.
(2) Ensure all data elements of SPOT or its successor to be
archived are USD(P&R)-approved and DMDC-system compatible, and ensure
the repository is protected at a level commensurate with the
sensitivity of the information contained therein.
(j) The Under Secretary of Defense (Comptroller)/Chief Financial
Officer (USD(C)/CFO), DoD, shall develop policy addressing the
reimbursement of funds for qualifying medical support received by
contingency contractor personnel in applicable contingency operations.
(k) The Secretaries of the Military Departments and the Directors
of the Defense Agencies and DoD Field Activities shall incorporate this
part into applicable policy, doctrine, programming, training, and
operations and ensure:
(1) Assigned contracting activities populate SPOT with the required
data in accordance with Assistant Secretary of Defense for Logistics
and Materiel Readiness Publication, ``Business Rules for the
Synchronized Predeployment and Operational Tracker (SPOT),'' current
edition (see http://www.acq.osd.mil/log/PS/spot.html) and that
information has been reviewed for security and operational security
(OPSEC) concerns in accordance with paragraph (c)(3)(ii)(E) of Sec.
158.6.
(2) CAAF meet all theater and/or joint operational area (JOA)
admission procedures and requirements prior to deploying to or entering
the theater or JOA.
(3) Contracting officers include in the contract:
(i) Appropriate terms and conditions and clause(s) in accordance
with 48 CFR 252.225-7040 and 48 CFR PGI 225.74.
(ii) Specific deployment and theater admission requirements
according to 48 CFR 252.225-7040 and 48 CFR PGI 225.74, and the
applicable CCDR Web sites.
(iii) Specific medical preparation requirements according to
paragraph (c)(8) of Sec. 158.6.
(iv) The level of protection to be provided to contingency
contractor personnel in accordance with paragraph (d)(5) of Sec.
158.6. Contracting officers shall follow the procedures on the
applicable CCDR Web sites to obtain theater-specific requirements.
(v) Government-furnished support and equipment to be provided to
contractor personnel with prior coordination and approval of theater
adjudication authorities, as referenced on the applicable CCDR Web
sites.
(vi) A requirement for contractor personnel to show and have
verified by the COR, proof of professional certifications/proficiencies
as stipulated in the contract.
(4) Standardized contract accountability financial and oversight
processes are developed and implemented.
(5) Requirements packages are completed to include all required
documentation (e.g., letter of justification, performance work
statement, nominated COR, independent Government estimate (IGE)) are
completed and funding strategies are articulated and updated as
required.
(6) CORs are planned for, resourced, and sustained as necessary to
ensure proper contract management capabilities are in place and
properly executed.
(7) Assigned contracting activities plan for, and ensure the
contractor plans for, the resources necessary to implement and sustain
contractor accountability in forward areas through SPOT or its
successor.
(8) Contract support integration plans (CSIPs) and contractor
management plans (CMPs) are developed as directed by the supported
CCDR.
(9) The risk of premature loss of mission-essential OCS is assessed
and the mitigation of the loss of contingency contractor personnel in
wartime or contingency operations who are performing essential
contractor services is properly planned for.
(10) Assigned contracting activities comply with theater business
clearance and contract administration delegation policies and processes
when implemented by CCDRs to support any phase of a contingency
operation.
(11) Agency equities are integrated and conducted in concert with
the CCDR's plans for OCS intelligence of the battlefield.
(12) The implementation of a certification of, and a waiver process
for, contractor-performed deployment and redeployment processing in
lieu of a formally designated group, joint, or Military Department
deployment center.
(13) Support the effort to resource the OCS toolset under the lead
of the DASD(PS) pursuant to paragraph (c)(6)(ii) of this section.
(l) The CJCS shall:
(1) Where appropriate, incorporate program management and elements
of this part into joint doctrine, joint instructions and manuals, joint
training, joint education, joint capability development, joint
strategic planning system (e.g., Joint Operation Planning and Execution
System (JOPES)), and CCDR oversight.
(2) Co-chair with the VDJ4 the OCS FCIB to lead and coordinate OCS
with OSD, Military Department, and Defense Agency senior procurement
officers in accordance with OCS FCIB charter. Provide the OCS FCIB with
input and awareness of the CJCS functions and activities as defined in
10 U.S.C. 153 and 155.
(3) Perform OCS related missions and functions as outlined in the
Joint Staff Manual 5100.01 \1\ and the Chairman's authorities as
defined in 10 U.S.C. (see http://uscode.house.gov/download/title_10.shtml).
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\1\ This document is classified Restricted, and is available via
Secure Internet Protocol Router Network at http://js.smil.mil. If
the requester is not an authorized user of the classified network
the requestor should contact Joint Staff J-1 at (703) 697-9645.
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(m) The geographic CCDRs and the CDRUSSOCOM (when they are the
supported commander) shall:
(1) Plan and execute OCS program management, contract support
integration, and contractor management actions in all applicable
contingency operations in their AOR.
(2) Conduct integrated planning to determine and synchronize
contract support requirements to facilitate OCS planning and
contracting and contractor management oversight.
(3) In coordination with the Services and functional components,
identify military capabilities shortfalls in all the joint warfighting
functions that require contracted solutions. Ensure these requirements
are captured in the appropriate CCDR, subordinate JFC, Service
component and combat support agency CSIP or other appropriate section
of the CONPLAN with time-phased force and deployment data (TPFDD),
OPLAN or operation order (OPORD).
(4) Require Service component commanders and supporting Defense
Agencies and DoD Field Activities to:
(i) Identify and incorporate contract support and operational
acquisition requirements in supporting plans to OPLANs and CONPLANs
with TPFDD, and to synchronize their supporting
[[Page 81813]]
CSIPs, CMPs, and contracted requirements and execution plans within
geographic CCDR OPLANs and CONPLANs with TPFDD.
(ii) Review their supporting CSIPs and CMPs and identify funding
strategies for particular contracted capabilities identified to support
each OPLAN and CONPLAN.
(iii) Develop acquisition-ready requirements documents as
identified in CSIPs including performance work statements, IGEs, task
order change documents, and sole source justifications.
(iv) Ensure CAAF and their equipment are incorporated into TPFDD
development and deployment execution processes in accordance with CJCS
Manual 3122.02C, JOPES Volume III, ``Crisis Action Time-Phased Force
and Deployment Data Development and Deployment Execution,'' June 19,
2006.
(v) Ensure financial management policies and procedures are in
place in accordance with DoD 7000.14-R (see http://comptroller.defense.gov/fmr/) and applicable service specific financial
management implementation guidance.
(5) Develop and publish comprehensive OCS plans. Synchronize OCS
requirements among all Service components and Defense Agencies and DoD
Field Activities operating within or in support of their area of
responsibility (AOR). Optimize operational unity of effort by analyzing
existing and projected theater support and external support contracts
to minimize, reduce, and eliminate redundant and overlapping
requirements and contracted capabilities.
(6) Ensure OCS requirements for the Defense Agencies, multinational
partners, and other Governmental agencies are addressed and priorities
of effort for resources are deconflicted and synchronized with OCS to
military forces.
(7) Ensure policies and procedures are in place for reimbursing
Government-furnished support of contingency contractor personnel,
including (but not limited to) subsistence, military air, intra-theater
lift, and medical treatment, when applicable.
(8) Ensure CAAF and equipment requirements (regardless if provided
by the Government or the contractor) in support of an operation are
incorporated into plan TPFDDs.
(9) Review Service component assessments of the risk of premature
loss of essential contractor services and review contingency plans to
mitigate potential premature loss of essential contractor services.
(10) Establish and communicate to contracting officers theater and/
or JOA CAAF admission procedures and requirements, including country
and theater clearance, waiver authority, immunizations, required
training or equipment, and any restrictions necessary to ensure proper
deployment, visibility, security, accountability, and redeployment of
CAAF to their AORs and/or JOAs. Implement DoD Foreign Clearance Guide,
current edition (available at https://www.fcg.pentagon.mil/).
(11) Coordinate with the Office of the USD(P) to ensure special
area, country, and theater personnel clearance requirements are current
in accordance with DoD Foreign Clearance Guide, and coordinate with
affected agencies (e.g., Intelligence Community agencies) to ensure
that entry requirements do not impact mission accomplishment.
(12) Determine and distribute specific theater OCS organizational
guidance in plans, to include command, control, and coordination, and
Head Contracting Authority (HCA) relationships.
(13) Develop and distribute AOR/JOA-wide contractor management
requirements, directives, and procedures into a separate contractor
management plan as an annex or the appropriate section of the
appropriate plan.
(14) Establish, staff, and execute appropriate OCS-related boards,
centers, and working groups.
(15) Integrate OCS into mission rehearsals and training exercises.
(16) When contracts are being or will be executed in an AOR/JOA,
designate and identify the organization responsible for managing and
prescribing processes to:
(i) Establish procedures and assign authorities for adjudicating
requests for provision of Government-furnished equipment and services
to contractors when such support is operationally required. This should
include procedures for communicating approval to the requiring activity
and the contracting officer for incorporation into contracts.
(ii) Authorize trained and qualified contractor personnel to carry
weapons for personal protection not related to the performance of
contract-specific duties.
(iii) Establish procedures for, including coordination of, inter-
theater strategic movements and intra-theater operational and tactical
movements of contractor personnel and equipment.
(iv) Collect information on and refer to the appropriate Government
agency offenses, arrests, and incidents of alleged misconduct committed
by contractor personnel on or off-duty.
(v) Collect and maintain information relating to CAAF and selected
non-CAAF kidnappings, injuries, and deaths.
(vi) Identify the minimum standards for conducting and processing
background checks, and for issuing access badges to HN, LN, and TCN
personnel employed, directly or indirectly, through Government-awarded
contracts.
(vii) Remove CAAF from the designated operational area who do not
meet medical deployment standards, whose contract period of performance
has expired, or who are noncompliant with contract requirements.
(viii) Designate additional contractor personnel not otherwise
covered by personnel recovery policy for personnel recovery support in
accordance with DoD Directive 3002.01E.
(ix) Ensure that contract oversight plans are developed, and that
adequate personnel to assist in contract administration are identified
and requested, in either a separate contractor management plan as an
annex of plans and orders and/or within appropriate parts of plans and
orders.
(x) Develop a security plan for the protection of contingency
contractor personnel according to paragraph (d)(5) of Sec. 156.8.
(xi) Develop and implement theater business clearance and, if
required, Contract Administration Delegation policies and procedures to
ensure visibility of and a level of control over systems support and
external support contracts providing or delivering contracted support
in contingency operations.
(17) Enforce the individual arming policy and use of private
security contractors in accordance with 32 CFR part 159 and DoD
Directive 5210.56 (see http://www.dtic.mil/whs/directives/corres/pdf/521056p.pdf).
(18) Establish a process for reviewing exceptions to medical
standards (waivers) for the conditions in paragraph (j) of Sec. 158.7,
including a mechanism to track and archive all approved and denied
waivers and the medical conditions requiring waiver. Additionally,
serve as the final approval/disapproval authority for all exceptions to
this policy, except in special operations where the Theater Special
Operations Command (TSOC) commander has the final approval or
disapproval authority.
(19) Establish mechanisms for ensuring contractors are required to
report offenses alleged to have been committed by or against contractor
personnel to appropriate investigative authorities.
(20) Assign responsibility for providing victim and witness
protection
[[Page 81814]]
and assistance to contractor personnel in connection with alleged
offenses.
(21) Ensure applicable predeployment, deployment, in-theater
management, and redeployment guidance and procedures are readily
available and accessible by planners, requiring activities, contracting
officers, contractors, contractor personnel and other interested
parties on a Web page, and related considerations and requirements are
integrated into contracts through contract terms, consistent with
security considerations and requirements.
(22) Ensure OCS preparation of the battlefield is vetted with
intelligence agencies when appropriate.
(23) Integrate OCS planning with operational planning across all
primary and special staff sections.
(n) The functional CCDRs utilizing OCS shall ensure their Commands
follow the procedures in this part and applicable operational-specific
guidance provided by the supported geographic CCDR.
Sec. 158.6 Procedures.
(a) Requirements, Relationships, and Restrictions. In implementing
this part, the Heads of DoD Components shall abide by applicable laws,
regulations, DoD policy, and international agreements as they relate to
contractor personnel supporting applicable contingency operations.
(1) Status of Contractor Personnel.
(i) Pursuant to applicable law, contracted services may be utilized
in applicable contingency operations for all functions not inherently
governmental. Contractor personnel may be utilized in support of such
operations in a non-combat role as long as contractor personnel
residing with the force in foreign contingencies have been designated
as CAAF by the force they accompany and are provided with an
appropriate identification card pursuant to the Geneva Convention
Relative to the Treatment of Prisoners of War (see http://www.icrc.org/ihl.nsf/FULL/375). If captured during international armed conflict,
contractors with CAAF status are entitled to prisoner of war status.
Some contractor personnel may be covered by the Geneva Convention
Relative to the Protection of Civilian Persons in Time of War (see
http://www.icrc.org/ihl.nsf/385ec082b509e76c41256739003e636d/6756482d86146898c125641e004aa3c5) should they be captured during armed
conflict. All contractor personnel may be at risk of injury or death
incidental to enemy actions while supporting military operations. CAAF
status does not apply to contractor personnel supporting domestic
contingencies.
(ii) Contractor personnel may support applicable contingency
operations such as by providing communications support; transporting
munitions and other supplies; performing maintenance functions for
military equipment; providing private security services; providing
foreign language interpretation and translation services, and providing
logistic services such as billeting and messing. Each service to be
performed by contractor personnel in applicable contingency operations
shall be reviewed on a case-by-case basis in consultation with the
cognizant manpower official and servicing legal office to ensure
compliance with DoD Instruction 1100.22 and relevant laws and
international agreements.
(2) Local and Third-Country Laws. Subject to the application of
international agreements, all contingency contractor personnel must
comply with applicable local and third country laws. Contractor
personnel may be hired from U.S., LN, or third country sources and
their status may change (e.g., from non-CAAF to CAAF), depending on
where they are detailed to work by their employer or on the provisions
of the contract. The CCDRs, as well as subordinate commanders and
Service component commanders, and the Directors of the Defense Agencies
and DoD Field Activities should be cognizant of limiting factors
regarding the employment of LN and TCN personnel. Limiting factors may
include imported labor worker permits; workforce and hour restrictions;
medical, life, and disability insurance coverage; taxes, customs, and
duties; cost of living allowances; hardship differentials; access to
classified information; and hazardous duty pay.
(3) U.S. Laws. CAAF, with some exceptions, are subject to U.S. laws
and Government regulations. For example, all U.S. citizen and TCN CAAF
may be subject to prosecution pursuant to Federal law including, but
not limited to, 18 U.S.C. 3261 (also known and hereinafter referred to
as ``The Military Extraterritorial Jurisdiction Act of 2000 (MEJA), as
amended''). MEJA extends U.S. Federal criminal jurisdiction to certain
defense contractor personnel for offenses committed outside U.S.
territory. Additionally, CAAF are subject to prosecution pursuant to 10
U.S.C. chapter 47 (also known and hereinafter referred to as ``The
Uniform Code of Military Justice (UCMJ)'') in accordance with Secretary
of Defense Memorandum (``UCMJ Jurisdiction Over DoD Civilian Employees,
DoD Contractor Personnel, and Other Persons Serving With or
Accompanying the Armed Forces Overseas During Declared War and in
Contingency Operations,'' March 10, 2008). Other laws may allow
prosecution of offenses by contactor personnel, such as 18 U.S.C. 7(9).
Immediate consultation with the servicing legal office and the
contracting officer is required in all cases of suspected MEJA and/or
UCMJ application to conduct by CAAF personnel, especially in non-combat
operations or in undeclared contingencies.
(4) Contractual Relationships. The contract is the only legal basis
for the relationship between the DoD and the contractor. The contract
shall specify the terms and conditions, to include minimum acceptable
professional standards, under which the contractor is to perform, the
method by which the contractor will be notified of the deployment
procedures to process contractor personnel, and the specific support
relationship between the contractor and the DoD. The contract shall
contain standardized clauses to ensure efficient deployment,
accountability, visibility, protection, authorized levels of health
service, and other support, sustainment, and redeployment of contractor
personnel. It shall also specify the appropriate flow-down of
provisions and clauses to subcontracts, and shall state that the
service performed by contractor personnel is not considered to be
active duty or active service in accordance with DoD Directive 1000.20
(see http://www.dtic.mil/whs/directives/corres/pdf/100020p.pdf) and 38
U.S.C. 106.
(5) Restrictions on Contracting Inherently Governmental Functions.
Inherently governmental functions and duties are barred from private
sector performance in accordance with DoD Instruction 1100.22, 48 CFR
207.503, 48 CFR 7.5, Public Law (Pub. L.) 105-270, and Office of
Management and Budget Circular A-76 (see http://www.whitehouse.gov/omb/circulars_a076_a76_incl_tech_correction). As required by 48 CFR
7.503(e), 48 CFR 207.503, and Deputy Secretary of Defense Memorandum,
``In-sourcing Contracted Services--Implementation Guidance'' dated May
28, 2009, contracting officials shall request requiring officials to
certify in writing that functions to be contracted (or to continue to
be contracted) are not inherently governmental. Requiring officials
shall determine whether functions are inherently governmental based on
the guidance in DoD Instruction 1100.22.
[[Page 81815]]
(6) Restrictions on Contracting Functions Exempted From Private
Sector Performance. As required by 48 CFR 207.503 and Deputy Secretary
of Defense Memorandum, ``In-sourcing Contracted Services--
Implementation Guidance,'' May 28, 2009, contracting officials shall
request requiring officials to certify in writing that functions to be
contracted (or continue to be contracted) are not exempted from private
sector performance. Requiring officials shall determine whether
functions are exempted from private sector performance based on the
guidance in DoD Instruction 1100.22.
(7) Requirements for Contracting Commercial Functions. As required
by 10 U.S.C. 2463 and Deputy Secretary of Defense Memorandum, ``In-
sourcing Contracted Services--Implementation Guidance,'' in advance of
contracting for commercial functions or continuing to contract for
commercial functions, requiring officials shall consider using DoD
civilian employees to perform the work. Requiring officials shall
determine whether DoD civilian employees should be used to perform the
work based on the guidance in Deputy Secretary of Defense Memorandum,
``In-sourcing Contracted Services--Implementation Guidance'' and Deputy
Secretary of Defense Memorandum ``Implementation of Section 324 of the
National Defense Authorization Act for Fiscal Year 2008 (FY 2008
NDAA)--Guidelines and Procedures on In-Sourcing New and Contracted Out
Functions,'' April, 4, 2008.
(8) International Laws, Local Laws, and Host Nation (HN) Support
Agreements. Planners and requiring activities, in coordination with
contracting officers shall take international laws, local laws, and HN
support agreements into account when planning for contracted support,
through assistance and coordination of the staff judge advocates (SJAs)
office of the geographic CCDRs; the Commander, United States Special
Operations Command (CDRUSSOCOM); the Commander, United States
Transportation Command (CDRUSTRANSCOM); and the Service component
commander SJA offices. These laws and support agreements may affect
contracting by restricting the services to be contracted, limiting
contracted services to LN or HN contractor sources or, in some cases,
by prohibiting contractor use altogether.
(9) Status-of-Forces Agreements (SOFAs). Planners and requiring
activities, in coordination with contracting officers shall review
applicable SOFAs and related agreements to determine their affect on
the status and use of contractors in support of applicable contingency
operations, with the assistance and coordination of the geographic CCDR
SJA offices.
(b) OCS Planning. Combatant and subordinate JFCs determine whether
contracted support capabilities are appropriate in support of a
contingency. When contractor personnel and equipment are anticipated to
support military operations, military planners will develop
orchestrated, synchronized, detailed, and fully developed CSIPs and
CMPs as components CONPLANs and OPLANs, in accordance with appropriate
strategic planning guidance. CONPLANS without TPFDD and OPORDs shall
contain CSIP- and CMP-like guidance to the extent necessary as
determined by the CCDR. OCS planning will, at a minimum, consider HN
support agreements, acquisition cross-servicing agreements, and
Military logistics support agreements.
(1) CSIPs. All CCDR CONPLANs with TPFDD and OPLANs shall include a
separate CSIP (i.e., Annex W) in accordance with Chairman of the Joint
Chiefs of Staff Manual 3122.02C and Joint Publication 4-0, ``Joint
Logistics,'' July 18, 2008. Further, plans and orders should contain
additional contract support guidance, as appropriate, in applicable
annexes and appendixes within the respective plans (e.g., contracted
bulk fuel support guidance should be addressed in the Class III(B)
Appendix to the Logistic Annex). Service component commanders shall
provide supporting CSIPs as directed by the CCDR.
(2) CMPs. All CCDR CONPLANs with TPFDD and OPLANs shall include a
separate CMP and/or requisite contractor management requirements
document in the applicable appendix or annex of these plans (e.g.,
private security contractor rules for the use of force should be
addressed in the Rules of Engagement Appendix to the Concept of the
Operation Annex) in accordance with Chairman of the Joint Chiefs of
Staff Manual 3122.02C and Joint Publication 4-0, ``Joint Logistics,''
July 18, 2008. Service component commanders shall provide supporting
CMPs as directed by the CCDR.
(3) Continuation of Essential Contractor Services. To ensure that
critical capabilities are maintained, it is necessary to assess the
risk of premature loss of mission-essential contracted support.
Supported and supporting commanders shall plan for the mitigation from
the risk of premature loss of contingency contractor personnel who are
performing essential contractor services. Planning for continuation of
essential contractor services during applicable contingency operations
includes:
(i) Determining all services provided overseas by defense
contractors that must continue during an applicable contingency
operation. Contracts shall obligate defense contractors to ensure the
continuity of essential contractor services during such operations.
(ii) Developing mitigation plans for those tasks identified as
essential contractor services to provide reasonable assurance of
continuation during crisis conditions. These mitigation plans should be
developed as part of the normal CSIP development process.
(iii) Ensuring the Secretaries of the Military Departments and the
geographic CCDRs plan for the mitigation from the risk of premature
loss of contingency contractor personnel who are performing essential
contractor services. When the cognizant DoD Component Commander or
geographic CCDR has a reasonable doubt about the continuation of
essential services by the incumbent contractor during applicable
contingency operations, the commander shall prepare a mitigation plan
for obtaining the essential services from alternative sources
(military, DoD civilian, HN, or other contractor(s)). This planning
requirement also applies when the commander has concerns that the
contractor cannot or will no longer fulfill the terms of the contract:
(A) Because the threat level, duration of hostilities, or other
factors specified in the contract have changed significantly;
(B) Because U.S., international, or local laws; HN support
agreements; or SOFAs have changed in a manner that affect contract
arrangements; or
(C) Due to political or cultural reasons.
(iv) Encouraging contingency contractor personnel performing
essential contractor services overseas to remain in the respective
operations area.
(4) Requirements for Publication. CCDRs shall make OCS planning
factors, management policies, and specific contract support
requirements available to affected contingency contractor personnel. To
implement the OCS-related requirements of DoD Directive 1100.4 (see
http://www.dtic.mil/whs/directives/corres/pdf/110004p.pdf), DoD
Instruction 1100.19 (see http://www.dtic.mil/whs/directives/corres/pdf/110019p.pdf), DoD Directive 5205.02 (see http://www.dtic.mil/whs/directives/corres/pdf/520502p.pdf), the mandated CCDR Web site at
http://
[[Page 81816]]
www.acq.osd.mil/dpap/pacc/cc/areas_of_responsibility.html shall
include the information in paragraphs (b)(4)(i) through (b)(4)(ix) of
this section (the data owner must review this information for security
classification and OPSEC considerations prior to its posting).
(i) Theater Business Clearance and Contract Administration
Delegation requirements for external support and systems support
contracts executing or delivering contracted support in the CCDR's AOR
(implemented at the CCDR's discretion).
(ii) Restrictions imposed by applicable international and local
laws, SOFAs, and HN support agreements.
(iii) CAAF-related deployment requirements and theater reception.
(iv) Reporting requirements for accountability of contractor
personnel and visibility of contracts.
(v) OPSEC plans and restrictions.
(vi) Force protection policies.
(vii) Personnel recovery procedures.
(viii) Availability of medical and other Government-furnished
support.
(ix) Redeployment procedures.
(5) Implementing OCS Plan Decisions Into Contracts.
(i) Specific contract-related considerations and requirements set
forth in Annex Ws of CONPLANs with TPFDD and OPLANs shall be reflected
and addressed in CCDR policies (e.g., Theater Business Clearance/
Contract Administration Delegation) and orders that apply to
contractors and their personnel, maintained on CCDR OCS Web pages and
integrated into contracts performing or delivering in a CCDR area of
responsibility. When such CCDR policies potentially affect contracts
other than those originated in the CCDR AOR, the CCDR should consult
the contingency contracting section of the Office of the Director,
DPAP, for advice on how best to implement these policies. All
contracted services in support of contingency operations shall be
included and accounted for in accordance with 10 U.S.C. 235 and 2330a.
This accounting shall be completed by the operational CCDR requiring
the service.
(ii) When making logistics sustainability recommendations, the DoD
Components and acquisition managers shall consider the requirements of
DoD Instruction 5000.02 (see http://www.dtic.mil/whs/directives/corres/pdf/500002p.pdf) and paragraph (a)(5) of this section. Early in the
contingency or crisis action planning process, they shall coordinate
with the affected supported and supporting commands any anticipated
requirements for contractor logistics support arrangements that may
affect existing CONPLANs, OPLANs, and OPORDs. As part of the supporting
plans, supporting organizations (Service components, defense agencies,
others) must provide adequate data (e.g., estimates of the numbers of
contractors and contracts and the types of supplies or services that
will be required to support their responsibilities within the OPLAN) to
the supported command planners to ensure the supported commander has
full knowledge of the magnitude of contracted support required for the
applicable contingency operation.
(6) TPFDD Development. Deployment data for CAAF and their equipment
supporting the Military Services must be incorporated into TPFDD
development and deployment execution processes in accordance with
Chairman of the Joint Chiefs of Staff Manual 3122.02C (see https://ca.dtic.mil/cjcs_directives/cjcs/manuals.htm). The requirement to
provide deployment data shall be incorporated into known system support
and external support contracts and shall apply regardless of whether
defense contractors will provide or arrange their own transportation.
(c) Deployment and Theater Admission Requirements and Procedures.
The considerations in this section are applicable during CAAF
deployment processing.
(1) General.
(i) The CCDR or subordinate JFC shall provide specific deployment
and theater admission requirements to the DoD Components for each
applicable contingency operation. These requirements must be delineated
in supporting contracts as explained in 48 CFR PGI 225.74. At a
minimum, contracting officers shall ensure that contracts address
operational area-specific contract requirements and the means by which
the Government will inform contractors of the requirements and
procedures applicable to a deployment.
(ii) A formally designated group, joint, or Military Department
deployment center (e.g., replacement center, Federal deployment center,
unit deployment site) shall be used to conduct deployment and
redeployment processing for CAAF, unless contractor-performed theater
admission preparation is authorized according to paragraph (c)(5), or
waived pursuant to paragraph (c)(15), of this section. However, a
Government-authorized process that incorporates all the functions of a
deployment center may be used if designated in the contract.
(2) Country Entry Requirements. Special area, country, and theater
personnel clearance documents must be current in accordance with the
DoD Foreign Clearance Guide (available at https://www.fcg.pentagon.mil/
) and coordinated with affected agencies (e.g., Intelligence Community
agencies) to ensure that entry requirements do not impact
accomplishment of mission requirements. CAAF employed in support of a
DoD mission are considered DoD-sponsored personnel for DoD Foreign
Clearance Guide purposes. Contracting officers shall ensure contracts
include a requirement that CAAF must meet theater personnel clearance
requirements and must obtain personnel clearances prior to entering
applicable contingency operations. Contracts shall require CAAF to
obtain proper identification credentials (e.g., passport, visa) as
required by the terms and conditions of the contract.
(3) Accountability and Visibility of Contingency Contracts and
Contractor Personnel.
(i) DoD contracts and contractors supporting an applicable
contingency operation shall be accountable and visible in accordance
with this part, 48 CFR PGI 225.74, and section 862 of Public Law 110-
181 (``National Defense Authorization Act for Fiscal Year 2008,''
January 28, 2008). Additionally, contract linguist utilization will be
tracked using the Contract Linguist Enterprise-wide Database in
accordance with DoD Directive 5160.41E. OCS requirements and contractor
accountability and visibility must be preplanned and integrated into
plans and OPORDs in accordance with Joint Publication 4-10 and Chairman
of the Joint Chiefs of Staff Manual 3122.02C and U.S. citizen, U.S.
legal alien contractor, LN, and TCN information provided in accordance
with CJCS Manual 3150.13C (see http://www.dtic.mil/cjcs_directives/cdata/unlimit/m315013.pdf).
(ii) As stated in the Deputy Under Secretary of Defense (Logistics
and Materiel Readiness) and Deputy Under Secretary of Defense (Program
Integration) Memorandum, ``Designation of Synchronized Predeployment
and Operational Tracker (SPOT) as Central Repository for Information on
Contractors Deploying with the Force,'' January 25, 2007 (see http://www2.centcom.mil/sites/contracts/Synchronized%20Predeployment%20and%20Operational%20Tracker/01-SPOT%20DFARS%20Deviation%202007-00004,%2019%20MAR%2007.pdf), SPOT was
designated as the joint web-based database to assist the CCDRs in
[[Page 81817]]
maintaining awareness of the nature, extent, and potential risks and
capabilities associated with OCS for contingency operations,
humanitarian assistance and peacekeeping operations, or military
exercises designated by the CCDR. To facilitate integration of
contingency contractors and other personnel as directed by the
USD(AT&L) or the CCDR, and to ensure accountability, visibility, force
protection, medical support, personnel recovery, and other related
support can be accurately forecasted and provided, these procedures
shall apply for establishing, maintaining, and validating the database:
(A) SPOT or its successor shall:
(1) Serve as the central repository for up-to-date status and
reporting on contingency contractor personnel as directed by the
USD(AT&L), 48 CFR 252.225-7040 and 48 CFR PGI 225.74, or the CCDR, as
well as other Government agency contractor personnel as applicable.
(2) Track contract information for all DoD contracts supporting
applicable contingency operations, as directed by the USD(AT&L), 48 CFR
PGI 225.74 and Chairman of the Joint Chiefs of Staff Manual 3150.13C,
or the CCDR. SPOT data elements are intended to provide planners and
CCDRs an awareness of the nature, extent, and potential risks and
capabilities associated with contracted support.
(3) Provide personnel accountability via unique identifier (e.g.,
Electronic Data Interchange Personnel Identifier (EDI-PI)) of DoD
contingency contractor personnel and other personnel as directed by the
USD(AT&L), 48 CFR PGI 225.74, Chairman of the Joint Chiefs of Staff
Manual 3150.13C, or the CCDR.
(4) Contain, or link to, minimum contract information (e.g.,
contract number, contract category, period of performance, contracting
agency and contracting office) necessary to establish and maintain
accountability and visibility of the personnel in paragraph
(c)(3)(ii)(A)1. of this section, to maintain information on specific
equipment related to private security contracts, and the contract
capabilities in contingency operations, humanitarian assistance, and
peacekeeping operations, or military exercises designated by the CCDR.
(5) Comply with the personnel identity protection program
requirements of DoD Directive 5205.02, DoD 5400.11-R (see http://www.dtic.mil/whs/directives/corres/pdf/540011r.pdf), and DoD 6025.18-R
(see http://www.dtic.mil/whs/directives/corres/pdf/602518r.pdf); be
consistent with the DoD Global Information Grid enterprise architecture
in DoD Directive 8000.01 (see http://www.dtic.mil/whs/directives/corres/pdf/800001p.pdf); and be compliant with DoD Directive 8320.02
(see http://www.dtic.mil/whs/directives/corres/pdf/832002p.pdf), DoD
Directive 4630.05 (see http://www.dtic.mil/whs/directives/corres/pdf/463005p.pdf), and DoD Directive 8500.01E (see http://www.dtic.mil/whs/directives/corres/pdf/850001p.pdf).
(B) All required data must be entered into SPOT or its successor
before a contractor employee is permitted to deploy to or enter a
military theater of operations. Contracting officers, through the terms
of the contracts, shall require contractors to enter data before an
employee's deployment and to maintain and update the information for
all CAAF, as well as non-CAAF as directed by the USD(AT&L), 48 CFR PGI
225.74, or the CCDR. The contract shall require the contractor to use
SPOT or its successor, to enter and maintain data on its employees.
(C) A summary of all DoD contract services or capabilities for all
contracts that are awarded to support contingency, humanitarian
assistance, and peacekeeping operations, to include theater, external,
and systems support contracts, shall be entered into SPOT or its
successor in accordance with 48 CFR 252.225-7040 and 48 CFR PGI 225.74.
(D) In accordance with applicable acquisition policy and
regulations, all defense contractors awarded contracts that support
applicable contingency operations shall be required, under the terms
and conditions of each affected contract, to input employee data and
maintain by-name accountability of designated contractor personnel in
SPOT or its successor as required by 48 CFR 252.225-7040 and 48 CFR PGI
225.74. Contractors shall be required under the terms and conditions of
their contracts to maintain policies and procedures for knowing the
general location of their employees and to follow the procedures
provided to them to submit up-to-date, real-time information reflecting
all personnel deployed or to be deployed in support of contingency,
humanitarian assistance, and peacekeeping operations. Prime contractors
shall be required under the terms and conditions of their contract to
follow the procedure provided to them to submit into SPOT or its
successor, up-to-date, real-time information regarding their
subcontractors at all tiers.
(E) In all cases, classified information responsive to the
requirements of this part shall be reported and maintained on systems
approved for the level of classification of the information provided.
(4) LOA. A SPOT-generated LOA shall be issued by the contracting
officer or designee to all CAAF as required by the clause in 48 CFR
subpart 252.225-7040 and selected non-CAAF (e.g., LN private security
contractors) as required under 48 CFR PGI 225.74 or otherwise
designated by the CCDR. The contract shall require that all contingency
contractor personnel who are issued an LOA will carry the LOA with them
at all times. For systems authorized in accordance with paragraph
(c)(3)(ii)(B) of this section, DoD Components shall coordinate with the
SPOT program manager to obtain an LOA handled within appropriate
security guidelines.
(5) Deployment Center Procedures.
(i) Affected contracts shall require that all CAAF process through
a designated deployment center or a Government-authorized, contractor-
performed deployment processing facility prior to deploying to an
applicable contingency operation. Upon receiving the contracted
company's certification that employees meet deployability requirements,
the contracting officer or his/her representative will digitally sign
the LOA. The LOA will be presented to officials at the deployment
center. The deployment process shall be for, but not limited to:
(A) Verifying accountability information in SPOT or its successor.
(B) Issuing applicable Government-furnished equipment.
(C) Verifying medical and dental screening, including required
military-specific vaccinations and immunizations (e.g., anthrax,
smallpox).
(D) Verifying and, when necessary, providing required training
(e.g., Geneva Conventions; law of armed conflict; general orders;
standards of conduct; force protection; personnel recovery; first aid;
operations security; anti-terrorism; counterintelligence reporting; the
use of chemical, biological, radiological, nuclear (CBRN) protective
ensemble), country and cultural awareness briefings, and other training
and briefings as appropriate.
(ii) Affected contingency contracts shall require that, prior to
deployment, contractors certify to the Government authorizing
representative named in the contract that all required deployment
processing actions have been completed for each individual.
(6) CAAF Identification, Training, and Security Clearance
Requirements. Contracts shall require eligible CAAF to be issued an
identification card with the Geneva Conventions Accompanying the Force
designation in accordance with
[[Page 81818]]
DoD Instruction 1000.13 (see http://www.dtic.mil/whs/directives/corres/pdf/100013p.pdf) and DTM 08-003 (see http://www.dtic.mil/whs/directives/corres/pdf/DTM-08-003.pdf). CAAF shall be required to
present their SPOT generated LOA as proof of eligibility at the time of
ID card issuance. All CAAF shall receive training regarding their
status under the law of war and the Geneva Convention. In addition and
to the extent necessary, the contract shall require the defense
contractor to provide personnel who have the appropriate security
clearance or are able to satisfy the appropriate background
investigation to obtain access required for the applicable contingency
operation.
(7) Government Support. Generally, contingency contracts shall
require that contractors provide all life, mission, and administrative
support to their employees necessary to perform the contract in
accordance with DoD Instruction 4161.02 (see http://www.dtic.mil/whs/directives/corres/pdf/416102p.pdf) and CCDR guidance as posted on the
CCDR OCS Web site. As part of preparing an acquisition requirement, the
requiring activity will include an estimate of the Government support
that is required to be provided to CAAF and selected non-CAAF in
accordance with 48 CFR 4.1301, 4.1303, 52.204-9, 7.5, 7.503(e), 2.101,
and 3.502 and 48 CFR PGI 225.74. The requiring activity will confirm
with theater adjudication authorities that the Government has the
capacity, capability, and willingness to provide the support. However,
in many contingency operations, especially those in which conditions
are austere, uncertain, and/or non-permissive, the contracting officer
may decide it is in the interest of the Government to allow for
selected life, mission, medical, and administrative support to some
contingency contractor personnel. Prior to awarding the contract, the
contracting officer will request the requiring activity to verify that
proper arrangements for Government support at the deployment center and
within the designated operational area have been made. The contract
shall specify the level of Government-furnished support to be provided
to CAAF and selected non-CAAF and what support is reimbursable to the
Government. The requiring activity will ensure that approved GFS is
available.
(8) Medical Preparation.
(i) In accordance with Sec. 158.7 of this part, contracts shall
require that contractors provide medically and physically qualified
contingency contractor personnel to perform duties in applicable
contingency operations as outlined in the contract. Any CAAF deemed
unsuitable to deploy during the deployment process due to medical or
dental reasons will not be authorized to deploy. The Secretary of
Defense may direct immunizations as mandatory for CAAF performing DoD-
essential contractor services in accordance with Joint Publication 4-0,
``Joint Logistics'', and Chairman of the Joint Chiefs of Staff Manual
3150.13C. For CAAF who are U.S. citizens, contracts shall require
contractors to make available the medical and dental records (including
current panographic x-ray) of the deploying employees who grant release
authorization for this purpose, according to contract terms based on
this section, DoD Directive 6485.02E (see http://www.dtic.mil/whs/directives/corres/pdf/648502p.pdf), applicable joint force command
surgeon guidance, and relevant Military Department policy.
(ii) Government personnel cannot force a contractor employee to
receive an immunization or disclose private medical records against his
or her will; therefore, particularly for medical requirements that
arise after contract award, the contracting officer will allow
contractors time to notify and/or hire employees who are willing to
meet Government medical requirements and disclose their private
information.
(iii) Medical threat pre-deployment briefings will be provided to
all CAAF to communicate health risks and countermeasures in the
designated operational area in accordance with DoD Instruction 6490.03
(see http://www.dtic.mil/whs/directives/corres/pdf/649003p.pdf). Health
readiness, force health protection capability, either as a
responsibility of the contractor or the DoD Components, will be fully
delineated in plans, orders, and contracts to ensure appropriate
medical staffing in the operational area. Health surveillance
activities shall also include plans for contingency contractor
personnel who are providing essential contractor services (as detailed
in DoD Directive 6490.02E (see http://www.dtic.mil/whs/directives/corres/pdf/649002Ep.pdf)). Deoxyribonucleic acid (DNA) collection and
other medical requirements are further addressed in Sec. 158.7 of this
part.
(9) Individual Protective Equipment (IPE). When necessary and
directed by CCDR, the contracting officer will include language in the
contract authorizing CAAF and selected non-CAAF, as designated by the
CCDR, to be issued military IPE (e.g., CBRN protective ensemble, body
armor, ballistic helmet) in accordance with DoD Directive 1100.4. This
equipment shall typically be issued at the deployment center, before
deployment to the designated operational area, and must be accounted
for and returned to the Government or otherwise accounted for in
accordance with appropriate DoD Component standing regulations
(including DoD Instruction 4161.2 (see http://www.dtic.mil/whs/directives/corres/pdf/416102p.pdf), directives, instructions, and
supplementing publications). It is important to plan and resource IPE
as required by the geographic CCDR or subordinate JFC, and the terms of
the contract. Training on the proper care, fitting, and maintenance of
issued protective equipment will be provided as part of contractor
deployment training. This training will include practical exercises
within the context of the various mission-oriented protective posture
levels. When a contractor is required under the terms and conditions of
the contract to provide IPE, such IPE shall meet minimum standards as
defined by the contract.
(10) Clothing. Defense contractors or their personnel are
responsible for providing their own personal clothing, including casual
and working clothing required by the assignment. Generally, commanders
shall not issue military clothing to contractor personnel or allow the
wearing of military or military look-alike uniforms. However, a CCDR or
subordinate JFC deployed forward may authorize contractor personnel to
wear standard uniform items for operational reasons. Contracts shall
require that this authorization be in writing and maintained in the
possession of authorized contractor personnel at all times. When
commanders issue any type of standard uniform item to contractor
personnel, care must be taken to ensure, consistent with force
protection measures, that contractor personnel are distinguishable from
military personnel through the use of distinctive patches, arm bands,
nametags, or headgear.
(11) Weapons. Contractor personnel shall not be authorized to
possess or carry firearms or ammunition during applicable contingency
operations except as provided in paragraphs (d)(5) and (d)(6) of this
section and in 32 CFR part 159. The contract shall provide the terms
and conditions governing the possession of firearms.
(12) Training. Joint training policy and guidance for the Military
Services, including DoD contractors, is provided in CJCS Instruction
3500.01F (see http://www.dtic.mil/doctrine/training/cjcsi3500_01f.pdf). Standing training requirements shall be placed on the
[[Page 81819]]
CCDR OCS Web sites for reference by contractors. Training requirements
that are specific to the operation shall be placed on the CCDR Web
sites immediately after a declared contingency so contracting officers
can incorporate them into the appropriate contracts as soon as
possible. Training requirements must be contained or incorporated by
reference in contracts employing contractor personnel in support of an
applicable contingency operation. Training requirements include
specific training requirements established by the CCDR and training
required in accordance with this part, 32 CFR part 159, DoD Directive
2000.12 (see http://www.dtic.mil/whs/directives/corres/pdf/200012p.pdf), and DoD Instruction 2000.16 (see http://www.dtic.mil/whs/directives/corres/pdf/200016p.pdf and DoD Instruction 1300.23 (see
http://www.dtic.mil/whs/directives/corres/pdf/130023p.pdf).
(13) Legal Assistance. Individual contractor personnel are
responsible to have their personal legal affairs in order (including
preparing and completing powers of attorney, wills, trusts, estate
plans, etc.) before reporting to deployment centers. Contractor
personnel are not entitled to military legal assistance either in-
theater or at the deployment center.
(14) Contractor Integration. It is critical that CAAF brought into
an operational area are properly integrated into the military operation
through a formal reception process. This shall include, at a minimum,
ensuring as they move into and out of the operational area, and
commensurate with local threat levels, that they:
(i) Have met theater entry requirements and are authorized to enter
the theater.
(ii) Are accounted for.
(iii) Possess any required IPE, including CBRN protective ensemble.
(iv) Have been authorized any required Government-furnished support
and force protection.
(15) Waivers. For contract support in the operational area that is
required for less than 30 consecutive days, the CCDR or designee may
waive a portion of the formal procedural requirements in paragraph
(c)(5) of this section, which may include waiving the requirement for
processing through a deployment center. However, the requirements to
possess proper identification cards and to establish and maintain
accountability and visibility for all defense contractors in accordance
with applicable policy shall not be waived, nor shall any medical
requirement be waived without the prior approval of qualified medical
personnel. If contingency contractor personnel are authorized to be
armed, the requirements of paragraphs (d)(5) and (d)(6) of this section
cannot be waived.
(d) Contractor In-Theater Management Requirements. The DoD
Components shall adhere to the in-theater management policies of this
section in managing contingency contractor personnel in support of
applicable contingency operations.
(1) Reception. All CAAF shall be processed into the operational
area through a designated reception site. The site shall verify, based
upon a visual inspection of the LOA, that contractor personnel are
entered into SPOT or its successor, and verify that personnel meet
theater-specific entry requirements. Contractor personnel already in
the designated operational area when a contingency is declared must
report to the appropriate designated reception site as soon as it is
operational. If any CAAF does not have the proper documentation, the
person will be refused entry into the theater, and the contracting
officer will notify the contractor to take action to resolve the reason
for the lack of proper documentation for performing in that area.
Should the contractor fail to take that action, the person shall be
sent back to his or her departure point, or directed to the Service
component command or Defense Agency responsible for that specific
contract for theater entrance processing.
(2) Contractor Use Restrictions. CCDRs, through their respective
contracting officers or their representatives, may place specific
restrictions on locations or timing of contracted support based on the
prevailing operational situation, in coordination with subordinate
commanders and the applicable Defense Agencies.
(3) Contractor Security Screening. Contractor screening
requirements for CAAF and non-CAAF who require access to U.S.
facilities will be integrated into OPSEC programs and plans.
(4) Contractor Conduct and Discipline. Terms and conditions of
contracts shall require that CAAF comply with theater orders,
applicable directives, laws, and regulations, and that employee
discipline is maintained. Non-CAAF who require base access will be
directed to follow base force protection and security-related
procedures as applicable.
(i) Contracting officers are the legal link between the requiring
activity and the contractor. 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. The requiring activity has no direct contractual
relationship with or authority over the contractor. However, the
ranking military commander may, in emergency situations (e.g., enemy or
terrorist actions or natural disaster), urgently recommend or issue
warnings or messages urging that CAAF and non-CAAF personnel take
emergency actions to remove themselves from harm's way or take other
appropriate self-protective measures.
(ii) The contractor is responsible for disciplining contingency
contractor personnel. 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 contingency contractor
personnel who jeopardize or interfere with mission accomplishment, or
whose actual field performance (certification/professional standard) is
well below that stipulated in the contract, or who fail to comply with
or violate applicable requirements of the contract. Such action may be
taken at Government discretion without prejudice to its rights under
any other provision of the contract, including the Termination for
Default. A commander also has the authority to take certain actions
affecting contingency 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, with some restrictions (e.g., LN CAAF are not subject
to MEJA), are subject to prosecution under MEJA and UCMJ in accordance
with 18 U.S.C. 7(9), 2441, and 3261 and Secretary of Defense
Memorandum, ``UCMJ Jurisdiction Over DoD Civilian Employees, DoD
Contractor Personnel, and Other Persons Serving With or Accompanying
the Armed Forces Overseas During Declared War and in Contingency
Operations,'' March 10, 2008. Commanders possess significant authority
to act whenever criminal activity is committed by anyone subject to
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 to that point
undetermined. Secretary of Defense Memorandum, ``UCMJ Jurisdiction Over
DoD Civilian Employees, DoD Contractor Personnel, and Other Persons
Serving With or Accompanying the Armed Forces Overseas During Declared
War and in
[[Page 81820]]
Contingency Operations,'' March 10, 2008, sets forth the scope of this
command authority in detail. Contracting officers will ensure that
contractors are made aware of their status and liabilities as CAAF and
the required training requirements associated with this status. Subject
to local or HN law, SOFA, and the jurisdiction of the Department of
State (e.g., consulate or chief of mission) over civilians in another
country, commanders 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. Contingency
contractor personnel are also subject to the domestic criminal laws of
the local nation absent a SOFA or international agreement to the
contrary. When confronted with disciplinary problems involving
contingency contractor personnel, commanders shall 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 alleged
to have been committed by or against contractor personnel, appropriate
investigative authorities shall keep the contracting officer informed,
to the extent possible without compromising the investigation, if the
alleged offense has a potential contract performance implication.
(5) Force Protection and Weapons Issuance. CCDRs shall develop
security plans for protection of CAAF and selected non-CAAF (e.g.,
those working on a military facility or as otherwise determined by the
operational commander) in locations where the civil authority is either
insufficient or illegitimate, and the commander determines it is in the
interests of the Government to provide security because the contractor
cannot obtain effective private security services; such services are
unavailable at a reasonable cost; or threat conditions necessitate
security through military means.
(i) In appropriate cases, the CCDR may provide security through
military means commensurate with the level of security provided DoD
civilians. Specific security measures shall be mission and situation
dependent as determined by the CCDR and provided to the contracting
officer. The contracting officer shall include in the contract the
level of protection to be provided to contingency contractor personnel
as determined by the CCDR or subordinate JFC. Specific procedures for
determining requirements for and integrating contractors into the JOA
force protection structure will be placed on the geographic CCDR Web
sites.
(ii) Contracts shall require all contingency contractor personnel
to comply with applicable CCDR and local commander force protection
policies. Contingency contractor personnel working within a U.S.
Military facility or in close proximity of U.S. Military forces may
receive incidentally the benefits of measures undertaken to protect
U.S. forces in accordance with DoD Directive 2000.12 (see http://www.dtic.mil/whs/directives/corres/pdf/200012p.pdf). However, it may be
necessary for contingency contractor personnel to be armed for
individual self-defense. Procedures for arming for individual self-
defense are:
(A) According to applicable U.S., HN, or international law;
relevant SOFAs; international agreements; or other arrangements with
local authorities and on a case-by-case basis when military force
protection and legitimate civil authority are deemed unavailable or
insufficient, the CCDR (or a designee no lower than the general/flag
officer level) may authorize contingency contractor personnel to be
armed for individual self-defense.
(B) The appropriate SJA to the CCDR shall review all applications
for arming contingency contractor personnel on a case-by-case basis to
ensure there is a legal basis for approval. In reviewing applications,
CCDRs shall apply the criteria mandated for arming contingency
contractor personnel for private security services provided in
paragraph (d)(6) of this section and 32 CFR part 159. In such cases,
the contractor will validate to the contracting officer, or designee,
that weapons familiarization, qualification, and briefings regarding
the rules for the use of force have been provided to contingency
contractor personnel in accordance with CCDR policies. Acceptance of
weapons by contractor personnel shall be voluntary and permitted by the
defense contractor and the contract. In accordance with paragraph (j)
of 48 CFR 252.225-7040, the contract shall require that the defense
contractor ensure such personnel are not prohibited by U.S. law from
possessing firearms.
(C) When armed for personal protection, contingency contractor
personnel are only authorized to use force for individual self-defense.
Unless immune from local laws or HN jurisdiction by virtue of an
international agreement or international law, the contract shall
include language advising contingency contractor personnel that the
inappropriate use of force could subject them to U.S. and local or HN
prosecution and civil liability.
(6) Use of Contractor Personnel for Private Security Services. If,
consistent with applicable U.S., local, and international laws;
relevant HN agreements, or other international agreements and this
part, a defense contractor may be authorized to provide private
security services for other than uniquely military functions as
identified in DoD Instruction 1100.22. Specific procedures relating to
contingency contractor personnel providing private security services
are provided in 32 CFR part 159.
(7) Personnel Recovery, Missing Persons, and Casualty Reporting.
(i) DoD Directive 3002.01E (see http://www.dtic.mil/whs/directives/corres/pdf/300201p.pdf) outlines the DoD personnel recovery program and
Joint Publication 3-50 (see http://www.dtic.mil/dpmo/laws_directives/documents/joint_pu_3_50.pdf) details its doctrine. The DoD personnel
recovery program covers all CAAF employees regardless of their
citizenship. If a CAAF becomes isolated or unaccounted for, the
contractor must expeditiously file a search and rescue incident report
(SARIR) (available at http://www.armystudyguide.com/content/the_tank/army_report_and_message_formats/search-and-rescue-inciden.shtml) to
the theater's personnel recovery architecture, i.e., the component
personnel recovery coordination cell or the Combatant Command joint
personnel recovery center.
(ii) Upon recovery following an isolating event, a CAAF returnee
shall enter the first of three phases of reintegration in DoD
Instruction 2310.4 (see http://www.dtic.mil/whs/directives/corres/pdf/231004p.pdf). The additional phases of reintegration in DoD Instruction
2310.4 shall be offered to the returnee to ensure his or her physical
and psychological well being while adjusting to the post-captivity
environment.
(iii) Accounting for missing persons, including contractors, is
addressed in DoD Directive 2310.07E (see http://www.dtic.mil/whs/directives/corres/pdf/231007p.pdf). Evacuation of dependents of
contractor personnel is addressed in DoD Directive 3025.14 (see http://www.dtic.mil/whs/directives/corres/pdf/302514p.pdf). All CAAF and non-
CAAF casualties shall be reported in accordance with Joint Publication
1-0, ``Personnel Support to Joint Operations,'' October 16, 2006 (see
[[Page 81821]]
http://www.dtic.mil/doctrine/new_pubs/jp1_0.pdf) and ASD(L&MR)
Publication, ``Business Rules for the Synchronized Predeployment and
Operational Tracker (SPOT),'' current edition. (See http://www.acq.osd.mil/log/PS/spot.html)
(8) Mortuary Affairs.
(i) CAAF who die while in support of U.S. forces shall be covered
by the DoD mortuary affairs program as described in DoD Directive
1300.22 (see http://www.dtic.mil/whs/directives/corres/pdf/130022p.pdf). Every effort shall be made to identify remains and
account for un-recovered remains of contractors and their dependents
who die in military operations, training accidents, and other multiple
fatality incidents. The remains of CAAF who are fatalities resulting
from an incident in support of military operations deserve and shall
receive the same dignity and respect afforded military remains.
(ii) The DoD may provide mortuary support for the disposition of
remains and personal effects at the request of the Department of State.
The USD(P&R) shall coordinate this support with the Department of State
to include cost reimbursement, where appropriate. The disposition of
non-CAAF contractors (LNs and TCNs) shall be given the same dignity and
respect afforded U.S. personnel. The responsibility for coordinating
the transfer of these remains to the HN or affected nation resides with
the geographic CCDR in coordination and conjunction with the Department
of State through the embassies or the International Red Cross, as
appropriate, and in accordance with applicable contract provisions.
(9) Medical Support and Evacuation. Theater-specific contract
language to clarify available healthcare can be found on the CCDR Web
sites. During applicable contingency operations in austere, uncertain,
and/or hostile environments, CAAF may encounter situations in which
they are unable to access medical support on the local economy.
Generally, the DoD will only provide resuscitative care, stabilization,
hospitalization at Level III medical treatment facilities (MTFs), and
assistance with patient movement in emergencies where loss of life,
limb, or eyesight could occur. Hospitalization will be limited to
stabilization and short-term medical treatment with an emphasis on
return to duty or placement in the patient movement system in
accordance with DoD Instruction 6000.11 (see http://www.dtic.mil/whs/directives/corres/pdf/600011p.pdf). All costs associated with the
treatment and transportation of CAAF to the selected civilian facility
are reimbursable to the Government and shall be the responsibility of
contractor personnel, their employers, or their health insurance
providers. Nothing in this paragraph is intended to affect the
allowability of costs incurred under a contingency contract. Medical
support and evacuation procedures are:
(i) Emergency Medical and Dental Care. All CAAF will normally be
afforded emergency medical and dental care if injured while supporting
contingency operations. Additionally, non-CAAF employees who are
injured while in the vicinity of U.S. forces will also normally receive
emergency medical and dental care. Emergency medical and dental care
includes medical care situations in which life, limb, or eyesight is
jeopardized. Examples of emergency medical and dental care include
examination and initial treatment of victims of sexual assault; refills
of prescriptions for life-dependent drugs; repair of broken bones,
lacerations, infections; and traumatic injuries to the dentition.
(ii) Primary Care. Primary medical or dental care normally will not
be authorized or be provided to CAAF by MTFs. 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 employees. Primary care includes routine inpatient and
outpatient services, non-emergency evacuation, pharmaceutical support,
dental services, and other medical support as determined by appropriate
military authorities based on recommendations from the joint force
command surgeon and on the existing capabilities of the forward-
deployed MTFs.
(iii) Long-Term Care. The DoD shall not provide long-term care to
contractor personnel.
(iv) Quarantine or Restriction of Movement. The CCDR or subordinate
commander has the authority to quarantine or restrict movement of
contractor personnel according to DoD Instruction 6200.03 (see http://www.dtic.mil/whs/directives/corres/pdf/620003p.pdf).
(v) Evacuation. Patient movement of CAAF shall be performed in
accordance with DoD Instruction 6000.11 (see http://www.dtic.mil/whs/directives/corres/pdf/600011p.pdf). 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. Should CAAF require medical
evacuation outside the continental United States (OCONUS), the sending
MTF shall assist CAAF in making arrangements for transfer to a civilian
facility of their choice. When U.S. forces provide emergency medical
care to non-CAAF, these patients will be evacuated or transported via
national means (when possible) to their local medical systems.
(10) Other Government-Furnished Support. In accordance with DoD
Component policy and consistent with applicable laws and international
agreements, Government-furnished support may be authorized or required
when CAAF and selected non-CAAF are deployed with or otherwise provide
support in the theater of operations to U.S. Military forces deployed
OCONUS. Types of support are listed in 48 CFR PGI 225.74 and may
include transportation to and within the operational area, mess
operations, quarters, phone service, religious support, and laundry.
(i) In operations where no reliable or local mail service is
available, CAAF who are U.S. citizens will be authorized postal support
in accordance with DoD 4525.6-M (see http://www.dtic.mil/whs/directives/corres/pdf/452506m.pdf). CAAF who are not U.S. citizens will
be afforded occasional mail service necessary to mail their pay checks
back to their homes of record.
(ii) Morale, welfare, and recreation (MWR) and exchange services
will be authorized for CAAF who are U.S. citizens in accordance with 10
U.S.C. 133. CAAF who are not U.S. citizens and non-CAAF are not
authorized MWR and exchange services.
(e) Redeployment Procedures. The considerations in this section are
applicable during the redeployment of CAAF.
(1) Transportation Out of Theater. When the terms and conditions of
the contract state that the Government shall provide transportation out
of theater:
(i) Upon completion of the deployment or other authorized release,
the Government shall, in accordance with each individual's LOA, provide
contractor employees transportation from the theater of operations to
the location from which they deployed, unless otherwise directed.
(ii) Prior to redeployment from the AOR, the contractor employee,
through their defense contractor, shall coordinate contractor exit
times and transportation with CONUS Replacement Center (CRC) or
designated reception site. Additionally, intelligence out-briefs must
be completed and customs and immigration briefings and inspections must
be conducted. CAAF are subject to customs and immigration processing
procedures at all designated
[[Page 81822]]
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) Post-Deployment Health Assessment. In accordance with DoD
Instruction 6490.03, contracts shall require that CAAF complete a post-
deployment health assessment in the Defense Medical Surveillance System
(DMSS) at the termination of the deployment (within 30 days of
redeployment). These assessments will only be used by the DoD to
accomplish population-wide assessments for epidemiological purposes,
and to help identify trends related to health outcomes and possible
exposures. They will not be used for individual purposes in diagnosing
conditions or informing individuals they require a medical followup.
Diagnosing conditions requiring medical referral is a function of the
contractor.
(3) Redeployment Center Procedures. In most instances, the
deployment center/site that prepared the CAAF for deployment will serve
as the return processing center. As part of CAAF redeployment
processing, the deployment center/site personnel will screen contractor
records, recover Government-issued identification cards and equipment,
and conduct debriefings as appropriate. The amount of time spent at the
return processing center will be the minimum required to complete the
necessary administrative procedures.
(i) A special effort will be made to collect all CACs from
returning deployed contractors.
(ii) Contractor employees are required to return any issued
clothing and equipment. Lost, damaged, or destroyed clothing and
equipment shall be reported in accordance with procedures of the
issuing facility. Contractor employees shall also receive a post-
deployment medical briefing on signs and symptoms of diseases to watch
for, such as tuberculosis. As some countries hosting an intermediate
staging base may not permit certain items to enter their borders, some
clothing and equipment, whether issued by the contractor, purchased by
the employee, or provided by the Government, may not be permitted to
exit the AOR. In this case, alternate methods of accounting for
Government-issued equipment and clothing will be used according to CCDR
or JFC guidance and contract language.
(4) Update to SPOT. Contracting officers or their designated
representative must verify that defense contractors have updated SPOT
to reflect their employee's change in status within 3 days of his or
her redeployment as well as close out the deployment and collect or
revoke the LOA.
(5) Transportation to Home Destination. Transportation of CAAF from
the deployment center/site to the home destination is the employer's
responsibility. Government reimbursement to the employer for travel
will be determined by the terms and conditions of the contract.
Sec. 158.7 Guidance for contractor medical and dental fitness.
(a) General.
(1) DoD contracts requiring the deployment of CAAF shall include
medical and dental fitness requirements as specified in this section.
Under the terms and conditions of their contracts, defense contractors
shall provide personnel who meet such medical and dental requirements
as specified in their contracts.
(2) The geographic CCDR will establish theater-specific medical
qualifications. When exceptions to these standards are requested
through the contracting officer, the geographic CCDR 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 requiring the waiver.
(3) The geographic CCDR shall also 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 geographic CCDR shall ensure appropriate language
regarding procedures and criteria for requiring removal of contractor
personnel identified as no longer medically qualified is developed, is
posted on the CCDR OCS Web site, and also ensure contracting officers
incorporate the same into all contracts for performance in the AOR.
(4) Unless otherwise stated in the contract, all pre-, during-, and
post-deployment medical evaluations and treatment are the
responsibility of the contractor.
(b) Medical and Dental Evaluations.
(1) All CAAF deploying in support of a contingency operation must
be medically, dentally, and psychologically fit for deployment as
stated in DoD Directive 6200.04 (see http://www.dtic.mil/whs/directives/corres/pdf/620004p.pdf). 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, defense contractors will provide medically, dentally,
and psychologically fit contingency contractor personnel to perform
contracted duties.
(2) Just as military personnel must pass a complete health
evaluation, CAAF shall have a similar evaluation based on the
functional requirements of the job. All CAAF must undergo a medical and
dental assessment within 12 months prior to arrival at the designated
deployment center or Government-authorized contractor-performed
deployment processing facility. This assessment should emphasize
diagnosing cardiovascular, pulmonary, orthopedic, neurologic,
endocrinologic, dermatologic, psychological, visual, auditory, dental,
and other systemic disease conditions that may preclude performing the
functional requirements of the contract, especially in the austere work
environments encountered in some contingency operations.
(3) In accordance with DoD Instruction 6490.03, contracts shall
require that CAAF complete a pre-deployment health assessment in the
DMSS at the designated deployment center or a Government-authorized
contractor-performed deployment processing facility. These assessments
will only be used by the DoD to accomplish population-wide assessments
for epidemiological purposes, and to help identify trends related to
health outcomes and possible exposures. They will not be used for
individual purposes in diagnosing conditions or informing individuals
they require a medical followup. Diagnosing conditions requiring
medical referral is a function of the contractor.
(4) In general, CAAF who have any of the medical conditions in
paragraph (j) of this section, based on an individual assessment
pursuant to DoD Instruction 6490.03, should not deploy.
(5) Individuals who are deemed not medically qualified at the
deployment center or at any period during the deployment process based
upon an individual assessment, or who require extensive preventive
dental care (see paragraph (j)(2)(xxv) of this section) will not be
authorized to deploy.
(6) Non-CAAF shall be medically screened when specified by the
requiring activity, for the class of labor that is being considered
(e.g., LNs working in a dining facility).
(7) Contracts shall require contractors to replace individuals who
develop, at any time during their deployment,
[[Page 81823]]
conditions that cause them to become medically unqualified.
(8) In accordance with DoD Instruction 6490.03, contracts shall
require that CAAF complete a post-deployment health assessment in DMSS
at the termination of the deployment (within 30 days of redeployment).
(c) Glasses and Contact Lenses. If vision correction is required,
contractor personnel will be required to have two pair of glasses. A
written prescription may also be provided to the supporting military
medical component so that eyeglass inserts for use in a compatible
chemical protective mask can be prepared. If the type of protective
mask to be issued is known and time permits, the preparation of
eyeglass inserts should be completed prior to deployment. Wearing
contact lenses in a field environment is not recommended and is at the
contingency contractor employee'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 force health protection prescription
products (FHPPPs) to be provided to CAAF and selected non-CAAF,
contracts shall require that contractor personnel deploy with a minimum
90-day supply of any required medications obtained at their own
expense. Contractor personnel must be aware that deployed medical units
are equipped and staffed to provide emergency care to healthy adults.
They will not be able to provide or replace many medications required
for routine treatment of chronic medical conditions, such as high blood
pressure, heart conditions, and arthritis. The contract shall 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 shall
require the contractor to be responsible for the re-supply of required
medications.
(e) Comfort Items. The contract shall require that CAAF take spare
hearing-aid batteries, sunglasses, insect repellent, sunscreen, and any
other supplies related to their individual physical requirements. These
items will not be provided by DoD sources.
(f) Immunizations. A list of immunizations, both those required for
entry into the designated area of operations and those recommended by
medical authorities, shall be produced for each deployment; posted to
the geographic CCDR Web site or other venue, as appropriate; and
incorporated in contracts for performance in the designated AOR.
(1) The geographic CCDR, upon the recommendation of the appropriate
medical authority (e.g., Combatant Command surgeon), shall provide
guidance and a list of immunizations required to protect against
communicable diseases judged to be a potential hazard to the health of
those deploying to the applicable theater of operation. The Combatant
Command surgeon of the deployed location shall prepare and maintain
this list.
(2) The contract shall require that CAAF be appropriately immunized
before completing the pre-deployment process.
(3) The Government shall provide military-specific vaccinations and
immunizations (e.g., anthrax, smallpox) during pre-deployment
processing. However, the contract shall stipulate that CAAF obtain all
other immunizations (e.g., yellow fever, tetanus, typhoid, flu,
hepatitis A and B, meningococcal, and tuberculin (TB) skin testing)
prior to arrival at the deployment center.
(4) Theater-specific medical supplies and FHPPPs, such as anti-
malarials and pyridostigmine bromide, will be provided to CAAF and
selected non-CAAF on the same basis as they are to active duty military
members. Additionally, CAAF will be issued deployment medication
information sheets for all vaccines or deployment-related medications
that are dispensed or administered.
(5) A TB skin test is required within 3 months prior to deployment.
Additionally, the contract shall stipulate that CAAF and selected non-
CAAF bring to the JOA a current copy of Public Health Service Form 791,
``International Certificate of Vaccination,'' (also known as ``shot
record,'' available for purchase at http://bookstore.gpo.gov/collections/vaccination.jsp).
(g) Human Immunodeficiency Virus (HIV) Testing. HIV testing is not
mandatory for contingency contractor personnel unless specified by an
agreement or by local requirements. HIV testing, if required, shall
occur within 1 year before deployment.
(h) Armed Forces Repository of Specimen Samples for the
Identification of Remains (AFRSSIR). For identification of remains
purposes, all CAAF who are U.S. citizens shall obtain a dental
panograph and provide a specimen sample suitable for DNA analysis prior
to or during deployment processing. The DoD Components shall ensure
that all contracts require CAAF who are U.S. citizens to provide
specimens for AFRSSIR as a condition of employment according to DoD
Instruction 5154.30 (see http://www.dtic.mil/whs/directives/corres/pdf/515430p.pdf). Specimens shall be collected and managed as provided in
paragraphs (h)(1) through (h)(3) of this section.
(1) All CAAF who are U.S. citizens processing through a deployment
center will have a sample collected and forwarded to the AFRSSIR for
storage. Contracts shall require contractors to verify in SPOT or its
successor that AFRSSIR has received the sample or that the DNA
reference specimen sample has been collected by the contractor.
(2) If CAAF who are U.S. citizens do not process through a
deployment center or the defense contractor is authorized to process
its own personnel, the contract shall require that the contractor make
its own arrangements for collection and storage of the DNA reference
specimen through a private facility, or arrange for the storage of the
specimen by contacting AFRSSIR. Regardless of what specimen collection
and storage arrangements are made, all defense contractors deploying
CAAF who are U.S. citizens must provide the CAAF name and Social
Security number, location of the sample, facility contact information,
and retrieval plan to AFRSSIR. If AFRSSIR is not used and a CAAF who is
a U.S. citizen becomes a casualty, the defense 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(s).
These records must be retrievable within 24 hours for forwarding to the
AFME when there is a reported incident that would necessitate its use
for human remains identification purposes. The defense contractor shall
have access to:
(i) Completed DD Form 93 or equivalent record.
(ii) Location of employee medical and dental records, including
panograph.
(iii) Location of employee fingerprint record.
(3) In accordance with DoD Instruction 5154.30 (see http://www.dtic.mil/whs/directives/corres/pdf/515430p.pdf), AFRSSIR is
responsible for implementing special rules and procedures to ensure the
protection of privacy interests in the specimen samples and any DNA
analysis of those samples. Specimen samples shall only be used for the
purposes outlined in DoD Instruction 5154.30. Other details, including
retention and destruction
[[Page 81824]]
requirements of DNA samples, are addressed in DoD Instruction 5154.30.
(i) Pre-Existing Medical Conditions. All evaluations of pre-
existing medical conditions should be accomplished prior to deployment.
Personnel who have pre-existing medical conditions may deploy if all of
these conditions are met:
(1) The condition is not of such a nature that an unexpected
worsening is likely to have a medically grave outcome or a negative
impact on mission execution.
(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 the contractor, independent of the military
health system, and have no special 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. Personnel must deploy with a minimum 90-day
supply of prescription medications other than FHPPPs.
(4) The condition does not and is not anticipated to require duty
limitations that would preclude performance of duty or to impose
accommodation. (The nature of the accommodation must be considered. The
Combatant Command surgeon (or his delegated representative) is the
appropriate authority to evaluate the suitability of the 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.
(1) This section is not intended to be comprehensive. A list of all
possible diagnoses and their severity that should not be approved would
be too expansive to list in this part. In general, individuals with the
conditions in paragraphs (j)(2)(i) through (j)(2)(xxx) of this section,
based on an individual assessment pursuant to DoD Instruction 6490.03,
will not normally be approved for deployment. The medical evaluator
must carefully consider whether climate; altitude; nature of available
food and housing; availability of medical, behavioral health, and
dental services; or other environmental and operational factors may be
hazardous to the deploying person's health 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 only after consultation
with the appropriate Combatant Command surgeon. The Combatant Command
surgeon makes recommendations and serves as the geographic CCDR
advisor; however, the geographic CCDR is the final approval or
disapproval authority except as provided in paragraph (k)(3) of this
section. The Combatant Command surgeon can determine if adequate
treatment facilities and specialist support is available at the duty
station for:
(i) Physical or psychological conditions resulting in the inability
to effectively wear IPE, including protective mask, ballistic helmet,
body armor, and CBRN protective ensemble, regardless of the nature of
the condition that causes the inability to wear the equipment if
wearing such equipment may be reasonably anticipated or required in the
deployed location.
(ii) Conditions that prohibit immunizations or use of FHPPs
required for the specific deployment. Depending on the applicable
threat assessment, required FHPPs, vaccines, and countermeasures may
include atropine, epinephrine and/or 2-pam chloride auto-injectors,
certain antimicrobials, antimalarials, and pyridostigmine bromide.
(iii) Any chronic medical condition that requires frequent clinical
visits, that fails to respond to adequate conservative treatment, or
that necessitates significant limitation of physical activity.
(iv) Any medical condition that requires durable medical equipment
or appliances or that requires periodic evaluation and/or treatment by
medical specialists not readily available in theater (e.g., CPAC
machine for sleep apnea).
(v) Any unresolved acute or chronic illness or injury that would
impair duty performance in a deployed environment during the duration
of the deployment.
(vi) Active tuberculosis 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) Cancer for which the individual is receiving continuing
treatment or that requires periodic specialty medical evaluations
during the anticipated duration of the deployment.
(xiii) Precancerous lesions that have not been treated and/or
evaluated and that require treatment and/or evaluation during the
anticipated duration of the deployment.
(xiiii) Any medical condition that requires 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 2 times in the last
12 months, or that requires daily systemic oral or injectable steroids.
(xvi) Any musculoskeletal condition that significantly impairs
performance of duties in a deployed environment.
(xvii) HIV antibody positive with the presence of progressive
clinical illness or immunological deficiency. The Combatant Command
surgeon should be consulted 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.
(xviiii) Loss of vision. Best corrected visual acuity must meet job
requirements to safely perform duties.
(xx) Symptomatic coronary artery disease.
(xxi) History of myocardial infarction within 1 year of deployment.
(xxii) History of coronary artery bypass graft, coronary artery
angioplasty, carotid endarterectomy, other arterial stenting, or
aneurysm repair within 1 year of deployment.
(xxiii) Cardiac dysrhythmias or arrhythmias, either symptomatic or
requiring medical or electrophysiologic control (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.
[[Page 81825]]
(xxvi) Psychotic and/or bipolar disorders. For detailed guidance on
deployment-limiting psychiatric conditions or psychotropic medications,
see ASD(HA) Memorandum ``Policy Guidance for Deployment-Limiting
Psychiatric Conditions and Medications'' November 7, 2006 (see http://www.ha.osd.mil/policies/2006/061107_deployment-limiting_psych_conditions_meds.pdf).
(xxvii) Psychiatric disorders under treatment with fewer than 3
months of demonstrated stability.
(xxviii) Clinical psychiatric disorders with residual symptoms that
impair duty performance.
(xxviiii) Mental health conditions that pose a substantial risk for
deterioration and/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 employee with one of the conditions listed
in paragraphs (j)(2)(i) through (j)(2)(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 or
designee.
(1) Waivers are unlikely for contractor personnel and an
explanation should be given as to why other persons who meet the
medical standards could not be identified to fulfill the deployed
duties. Waivers and requests for waivers will include a summary of a
detailed medical evaluation or consultation concerning the medical
condition(s). Maximization of mission accomplishment and the protection
of the health of personnel are the ultimate goals. Justification will
include statements indicating the CAAF member's experience, position to
be placed in, any known specific hazards of the position, anticipated
availability and need for care while deployed, and 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 (j)(2)(xxx) of this section must have the concurrence
by the Combatant Command surgeon, or his designee, who will recommend
approval or disapproval to the geographic CCDR. The geographic CCDR, or
his 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
(j)(2)(xxx) of this section, medical clearance may be granted after
consultation with the appropriate Theater Special Operations Command
(TSOC) surgeon. The TSOC surgeon, in coordination with the Combatant
Command surgeon 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.
Dated: December 21, 2011.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2011-33107 Filed 12-28-11; 8:45 am]
BILLING CODE 5001-06-P