(Revised October 30, 2023)
PGI 225.3-- CONTRACTS PERFORMED OUTSIDE THE UNITED STATES(See DFARS 225.3, DFARS/PGI view)
(a) If the acquisition requires the performance of services or delivery of supplies in an area outside the United States, the contracting officer shall—
(i) Ensure that the solicitation and contract include any applicable host country and designated operational area performance considerations. Failure to provide such information—
(A) May result in a contract that does not reflect the respective support relationships between the contractor and the Government, ultimately affecting the ability of the contractor to fulfill the contract terms and conditions;
(B) May result in unplanned support burdens being placed on the Government in a theater of operations;
(C) May result in contractor personnel conflicting with theater operations or performing in violation of a theater commander’s directives or host country laws; or
(D) May cause contractor personnel to be wrongly subjected to host country laws;
(ii) Comply with any theater business clearance and contract administration delegation requirements set forth in the memorandum entitled Theater Business Clearance/Contract Administration Delegation Update—Integration of TBC with the Joint Contingency Contracting System Platform, which must be consistent with the combat support agency’s established functions and responsibilities, and set forth by the geographic combatant commander during declared contingency operations for all solicitations and contracts that relate to the delivery of supplies and services to the designated area(s) of operation. The memorandum is available at https://www.acq.osd.mil/dpap/policy/policyvault/USA004346-12-DPAP.pdf.
(A) Theater business clearance ensures—
(1) Contracted effort to be accomplished in designated area(s) of operations, along with any associated contractor personnel, is visible to the combatant commander;
(2) Contracted effort is in consonance with in-country commanders’ plans;
(3) Solicitations and contracts contain appropriate terms and conditions;
(4) Contracted effort will be properly overseen in designated area(s) of operation;
(5) Any Government-furnished support requirements associated with contractor personnel are properly addressed in the contract terms and conditions.
(B) Contract administration delegation—
(1) Allows the combatant commander to exercise control over the assignment of contract administration (which must be consistent with the combat support agency’s established functions and responsibilities) for that portion of contracted effort that relates to performance in, or delivery to, designated area(s) of operation.
(2) Allows the combatant commander to exercise oversight to ensure the contractor’s compliance with combatant commander and subordinate task force commander policies, directives, and terms and conditions;
(iii) Refer to the website at https://www.acq.osd.mil/asda/dpc/cp/cc/index.html, which contains required procedures and applicable guidance and information;
(iv) Follow specific guidance for the combatant command in whose area the contractor will be performing services or delivering supplies. This guidance is contained on the respective combatant commander’s operational contract support webpage, which is linked to the procedures at https://www.acq.osd.mil/asda/dpc/cp/cc/aor.html, at the weblink for the combatant command for the area in which the contractor will be performing services or delivering items. These pages list prevailing regulations, policies, requirements, host nation laws, orders/fragmentary orders, combatant commander’s directives, unique clauses, and other considerations necessary for soliciting and awarding a contract for performance in, or delivery of items to, that combatant commander’s area of responsibility;
(v) To determine the appropriate point(s) of contact for contracting matters within the combatant commander’s area of responsibility, contact the overseas contracting office by accessing the link for the combatant command in whose area of responsibility the contractor will be performing services or delivering items. From the combatant command website, link to the contracting office supporting the combatant command to identify the appropriate point of contact; and
(vi) Use the following checklist as a guide to document consideration of each listed issue, as applicable, and retain a copy of the completed checklist in the contract file.
The contracting officer shall verify that the requiring activity has considered the following when building its requirements package, as applicable:
____ (1) Whether the contemplated acquisition will duplicate or otherwise conflict with existing work being performed or items already provided in the area, and whether economies of scope/schedule can be leveraged if there are already existing contracts in place for similar work or items.
____ (2) The availability of technically qualified and properly trained Government civilian and/or military personnel to oversee the performance of the contract in the combatant commander’s area of responsibility (e.g., contracting officer’s representatives, quality assurance representatives, and property administrators).
____ (3) The applicability of any international agreements to the acquisition. (Some agreements may be classified and must be handled appropriately.)
____ (4) Compliance with area-specific, anti-terrorism security guidance set forth by the command anti-terrorism officer, to include soliciting anti-terrorism officer guidance on the particular requirement and the location of delivery and/or execution of services, and incorporating recommended security measures into the requirements package.
____ (5) Whether there are any requirements for use of foreign currencies, including applicability of U.S. holdings of excess foreign currencies.
____ (6) Information on taxes and duties from which the Government may be exempt.
____ (7) If the acquisition requires performance of work in the foreign country, whether there are standards of conduct for the prospective contractor and, if so, the consequences for violation of such standards of conduct.
____ (8) The availability of logistical and other Government-furnished support and equipment for contractor personnel. This includes, but is not limited to: berthing and messing; intra-theater transportation; medical support; morale, welfare, and recreation support; postal support; force protection support; organizational clothing and personal protective gear (e.g., body armor and gas masks.)
____ (9) If the contractor will employ foreign workers, whether a waiver of the Defense Base Act will be required (see FAR 28.305).
____ (10) Whether contractor personnel will need authorization to carry weapons for the performance of the contract.
____ (11) If the contract will include the clause at DFARS 252.225-7040, Contractor Personnel Supporting U.S. Armed Forces Deployed Outside the United States, the Government official authorized to receive DD Form 93, Record of Emergency Data Card, to enable the contracting officer to provide that information to the contractor, as required by paragraph (g) of the clause.
____ (12) Ascertain the existence of and detail any Geographic Combatant Commander’s (GCC’s)/Subordinate Joint Force Commander Combating Trafficking in Persons Directives or Notices applying to Combating Trafficking in Persons (as required by FAR 22.1705 for contracts performed outside the United States) that would require the contracting officer to use Alternate I of the clause at FAR 52.222-50 detailing these requirements. This information can be ascertained from review of content on the cognizant Geographic Combatant Command Operational Contract Support webpage referred to in (a)(iv) of this PGI section.
____ (13) Other requirements associated with contractor personnel to include deployment -related training, accountability (registration in Synchronized Pre-deployment and Operational Tracker), medical and dental qualifications, theater entrance and country clearance requirements.
____ (14) Any other requirements of the website for the country in which the contract will be performed or the designated operational area to which deliveries will be made.
____ (1) The solicitation number, the estimated dollar value of the acquisition, and a brief description of the work to be performed or the items to be delivered.
____ (2) Notice of contract award, including contract number, dollar value, and a brief description of the work to be performed or the items to be delivered.
____ (3) Any additional information requested by the applicable contracting office to ensure full compliance with policies, procedures, and objectives of the applicable country or designated operational area.
(c) For work performed in Japan or Korea, U.S.-Japan or U.S.-Korea bilateral agreements govern the status of contractors and employees, criminal jurisdiction, and taxation. U.S. Forces Japan (USFJ) and U.S. Forces Korea (USFK) are sub-unified commands of Pacific Command (PACOM). The PACOM Staff Judge Advocate contact information is available at http://www.pacom.mil/web/Site_Pages/Staff%20Directory/J0/J0.shtml or by clicking on Staff Directory/Special Staff on the PACOM website. Links to USFJ and USFK websites can be found at the PACOM website at http://www.pacom.mil by clicking on “Regional Resources - Links”.
(i) For work performed in Japan—
(A) U.S.-Japan bilateral agreements govern the status of contractors and employees, criminal jurisdiction, and taxation;
(B) USFJ and component policy, as well as U.S.-Japan bilateral agreements, govern logistic support and base privileges of contractor employees;
(C) The Commander, USFJ, is primarily responsible for interpreting the Status of Forces Agreement (SOFA) and local laws applicable to U.S. Forces in Japan and for requirements in support of USFJ; and
(D)(1) To ensure that the solicitation and resultant contract reflect an accurate description of available logistics support and application of the U.S.-Japan SOFA, review the information on Contract Performance in Japan at the USFJ website, http://www.usfj.mil; or
(2) Contact the Staff Judge Advocate at (commercial) 011-81-3117-55-7717, or DSN 315-225-7717.
(ii) For work performed in Korea—
(A) U.S.-Korea bilateral agreements govern the status of contractors and employees, criminal jurisdiction, and taxation;
(B) USFK and component policy, as well as U.S.-Korea bilateral agreements, govern logistics support and base privileges of contractor employees;
(C) The Commander, USFK, is primarily responsible for interpreting the SOFA and local laws applicable to U.S. Forces in Korea and for requirements in support of USFK; and
(D) To ensure that the solicitation and resultant contract reflect an accurate description of available logistics support and application of the U.S.-Korea SOFA, review the SOFA information found at the USFK website at http://www.usfk.mil/usfk/ under “Publications”, or at http://www.usfk.mil/usfk/sofadocuments.aspx. Contact information for the Commander is also available at http://www.usfk.mil/usfk/leadership.aspx; and
(E) Additional applicable directives and regulations are available at http://www.usfk.mil/usfk/ , click on the drop down menu for “Publications”.
(d) For work performed in specified countries in the USCENTCOM area of responsibility, follow theater business clearance/ contract administration delegation policy as set forth in OSD policy letters linked to this PGI, and specific theater business clearance/contract administration delegation instructions as implemented by USCENTCOM’s Joint Theater Support Contracting Command and found under contracting guidance at https://www.acq.osd.mil/asda/dpc/cp/cc/aor.html (click on CENTCOM area of responsibility).
(1) DoDI 3020.41, Operational Contract Support (OCS), establishes policy, assigns responsibilities and provides procedures for OCS, including OCS Program Management, contract support integration, and integration of defense contractor personnel into contingency operations outside the United States. This instruction serves as a comprehensive source of DoD policy and procedures concerning DoD contractor and subcontractor personnel supporting the U.S. Armed Forces deployed outside the United States.
“Designated operational areas” include, but are not limited to, such descriptors as theater of war, theater of operations, joint operations area, amphibious objective area, joint special operations area, and area of operations. See DoD Joint Publication 3-0, Joint Operations, Chapter IV, Paragraph 2, “Understanding the Operational Environment,” at http://www.dtic.mil/doctrine/new_pubs/jp3_0.pdf.
(a) Support that may be authorized or required when contractor personnel are deployed with or otherwise provide support in the theater of operations to U.S. military forces deployed outside the United States may include, but are not limited to—
(i) Deployment in-processing centers;
(iii) Transportation to operation area;
(iv) Transportation within operation area;
(v) Physical security;
(vi) Force protection;
(vii) Organizational clothing and individual equipment;
(viii) Emergency medical care;
(ix) Mess operations;
(xi) Postal service;
(xii) Phone service;
(xiii) Emergency notification;
(xiv) Laundry; and
(xv) Religious services.
(d) Medical support of contractor personnel.
(1) Contractors are required to ensure that the Government is reimbursed for any costs associated with medical or dental care provided to contractor employees accompanying the forces (see 252.225-7040(c)(2)).
(2) If questions arise concerning Defense Finance and Accounting Services (DFAS) billing to contractors for medical or dental care provided, contracting officers may refer the individual to any of the following resources:
(i) For in-patient and out-patient billing rates, go to http://comptroller.defense.gov/FinancialManagement/Reports/rates2013.aspx, click on the appropriate fiscal year, and select Deployed/Non-Fixed Medical Facility Billing Rates.
(ii) For Military Service-appointed points of contact (POCs) responsible for resolving medical billing disputes, see the POCs listed in the memoranda of agreements between DFAS and the military services).
(iii) For general information on medical support of deployed contractor personnel in applicable contingency operations, see DoDI 3020.41.
(3) Contracting officers are not responsible for adjudicating DFAS bills to contractors for such medical or dental reimbursement. However, contracting officers are required to assist the Military Service POCs in resolving billing disputes.
(e) Letter of authorization.
(i) If authorized by the contracting officer, a contracting officer’s representative may approve a SPOT-generated LOA. Contractor travel orders will be prepared by the supporting installation.
(ii) The LOA will state the intended length of assignment in the theater of operations and will identify planned use of Government facilities and privileges in the theater of operations, as authorized by the contract. Authorizations may include such privileges as access to the exchange facilities and the commissary, and use of Government messing and billeting. The LOA must include the name of the approving Government official.
(iii) Approved, standard DoD format for LOA: (See sample LOA, Business Rules for the Synchronized Predeployment and Operational Tracker, at http://www.acq.osd.mil/log/PS/ctr_mgt_accountability.html
“Performance,” as used in Class Deviation 2015-O0009, Contractor Personnel Performing in the United States Central Command Area of Responsibility, means performance of a service or construction, as required by the contract. For supply contracts, production of the supplies or associated overhead functions are not covered by the Class Deviation, but services associated with the acquisition of the supplies are covered (e.g., installation or maintenance).
(b) When using the clause at DFARS 252.225-7040, Contractor Personnel Supporting U.S. Armed Forces Deployed Outside the United States, consider the applicability of the following clauses:
(ii) Either the clause at FAR 52.228-3, Workers’ Compensation Insurance (Defense Base Act), or the clause at FAR 52.228-4, Workers’ Compensation and War-Hazard Insurance Overseas, as prescribed at FAR 28.309(a) and (b).
(iii) The clause at FAR 52.228-7, Insurance—Liability to Third Persons, in cost-reimbursement contracts as prescribed at DFARS 228.311-1.
(vi) The clause at FAR 52.249-14, Excusable Delays, as prescribed at FAR 49.505(b).
(vii) The clauses at FAR 52.251-1, Government Supply Sources, as prescribed at FAR 51.107, and DFARS 252.251-7000, Ordering from Government Supply Sources, as prescribed at DFARS 251.107. See also Class Deviation 2013-O0012, Authorization for Contractors to Use Government Supply Sources in Support of Operation Enduring Freedom.
Information and guidance pertaining to DoD antiterrorism/force protection policy for contracts that require performance or travel outside the United States can be obtained from the following offices:
(1) For Army contracts: HQDA-AT; telephone, DSN 222-9832 or commercial (703) 692-9832.
(2) For Navy contracts: Naval Criminal Investigative Service (NCIS), Code 21; telephone, DSN 288-9077 or commercial (202) 433-9077.
(3) For Marine Corps contracts: CMC Code POS-10; telephone, DSN 224-4177 or commercial (703) 614-4177.
(4) For Air Force and Combatant Command contracts: The appropriate Antiterrorism/Force Protection Office at the Command Headquarters. Also see https://atep.dtic.mil.
(5) For defense agency contracts: The appropriate agency security office.
(6) For additional information: Assistant Secretary of Defense for Homeland Defense and Global Security, ASD (HS/GS); telephone, DSN 227-6566 or 260-8350 or commercial (703) 697-6566 or (571) 256-8350.
(1) In accordance with Joint Publication 1, Doctrine for the Armed Forces of the United States, at http://www.apexnet.org/docs/Joint_Publication_1.pdf, the geographic combatant commander or subordinate joint force commander, through his command authority to exercise operational control, has the authority to exercise control over the assignment of contract administration during contingency operations, consistent with the combat support agency’s established mission functions, responsibilities, and core competencies, for contracts requiring delivery of items or performance within the area of operations.
(2) In certain contingency operations, the combatant commander or joint force commander may promulgate theater or joint operations area guidance for contracting that may include establishing—
(i) A contracting command and control structure;
(ii) Head of contracting activity responsibilities, specific orders, and policies, including local clauses;
(iii) Roles and responsibilities of DoD components and supporting agencies in contract formation and execution; and
(iv) Procedures and requirements for contract clearance and contract administration of contracts requiring delivery of items and performance within the area of operations.
(3) When a combat support agency is tasked by the combatant commander to provide contingency contract administration services in support of contingency operations and such support will be required for a long duration, the combat support agency shall initiate a memorandum of agreement with the combatant commander or joint force commander. This agreement shall clearly delineate the purpose of the support, respective responsibilities of the combat support agency and the joint, lead service, or service contracting activity requesting the support, combat support agency support parameters, and a resolution process for resolving support issues.
(i) The memorandum of agreement should focus on maximizing the combat support agency’s core competencies to address the more critical, complex, high-risk, and specialized oversight requirements.
(ii) The memorandum of agreement should take into consideration the combat support agency’s core competencies, workload priorities, and contract administration services support parameters for accepting requests for contract administration services support.
(iii) A combat support agency shall not be assigned to perform tasks outside its mission functions, responsibilities, or core competencies.
(iv) Contracting officers contemplating requesting contract administration support in a contingency area from a combat support agency should first ascertain whether such a memorandum of agreement exists by contacting their combat support agency point of contact and/or checking the combatant commander operational contract support website (referenced in DFARS PGI 225.370 (DFARS/PGI view)).
(v) The following is a notional format for a memorandum of agreement for contract administration services support;
(A) Purpose: Outline formal procedures for requesting contract administration services support, describe objectives associated with combat support agency providing such support.
(B) Reference: Key documents or reference(s) associated with the execution of the contract administration services support.
(C) Clearing-house functions performed by the designated joint or lead component contracting activity in the operational area–
(1) Contract clearance parameters – when required;
(2) Contract delegation parameters – when required.
(D) Contract administration services support parameters—
(1) Acceptable for delegation - contract types that will be accepted by the combat support agency based on risk, dollar threshold, geographic dispersion of performance, service type, criticality of acceptance, or other criteria;
(2) Generally not be delegated – below-threshold contract types;
(3) Will not be delegated – no agency expertise to oversee.
(E) Delegation process – process for accepting and assigning contract administration services tasks within the combat support agency.
(F) Joint resolution process – procedures in the event of disagreement on actions to be supported by the combat support agency.
(G) Term of the Agreement and Modification - length of time the agreement will be in effect and procedures for the parties to modify or terminate it.
(4) Disputes regarding requested support should be resolved at the lowest management level possible, through a predetermined resolution process. When support issues arise that affect the ability of a combat support agency to provide contract administration support that cannot be resolved at lower management levels, follow procedures set forth in DoDI 3000.06, Combat Support Agencies, paragraphs 5.6.8 and 5.6.9, (http://www.dtic.mil/whs/directives/corres/pdf/300006p.pdf).
(5) Responsibilities of the head of the contracting activity for contingency contract closeout are addressed at DFARS 204.804(2). See also planning considerations at PGI 207.105(b)(20)(C)(8) (DFARS/PGI view).