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  • Question

    Is this allowable? I believe it may contradict some FAR clauses, Theater Business Clearance clauses. There are too many undefined variables such as "adequate security", "reasonable time"...


    Answer

    1. The FAR and DFARS references quoted below in pertinent part are applicable to this response.

    FAR 52.245-1 -- Government Property
    (i) Equitable adjustment. Equitable adjustments under this clause shall be made in accordance with the procedures of the Changes clause. However, the Government shall not be liable for breach of contract for the following:
      (1) Any delay in delivery of Government-furnished property.
      (2) Delivery of Government-furnished property in a condition not suitable for its intended use.
      (3) An increase, decrease, or substitution of Government-furnished property.
      (4) Failure to repair or replace Government property for which the Government is responsible.

    DFARS 225.7402-5 -- Contract clauses
    (a)  Use the clause at 252.225-7040, Contractor Personnel Authorized to Accompany U.S. Armed Forces Deployed Outside the United States, … in solicitations and contracts that authorize contractor personnel to accompany U.S. Armed Forces deployed outside the United States in— (1) Contingency operations; (2) Humanitarian or peacekeeping operations; or (3) Other military operations or military exercises, when designated by the combatant commander.

    DFARS 252.225-7040 -- Contractor Personnel Authorized to Accompany U.S. Armed Forces Deployed Outside the United States
    (c) Support.
    (1)(i) The Combatant Commander will develop a security plan for protection of Contractor personnel in locations where there is not sufficient or legitimate civil authority, when the Combatant Commander decides it is in the interests of the Government to provide security because—
      (A) The Contractor cannot obtain effective security services;
      (B) Effective security services are unavailable at a reasonable cost; or
      (C) Threat conditions necessitate security through military means.
    (ii) The Contracting Officer shall include in the contract the level of protection to be provided to Contractor personnel.
    (iii) In appropriate cases, the Combatant Commander may provide security through military means, commensurate with the level of security provided DoD civilians.

    DFARS 252.225-7995 -- Contractor Personnel Performing in the United States Central Command Area of Responsibility (Deviation 2011-O0004)
    (b) General.  (2) Contract performance may require work in dangerous or austere conditions.  Except as otherwise provided in the contract, the Contractor accepts the risks associated with required contract performance in such operations.
    (c) SupportUnless specified elsewhere in the contract, the Contractor is responsible for all logistical and security support required for contractor personnel engaged in this contract.

    2. The following additional references quoted below in pertinent part are also applicable to this response.

    DoDI 3020.41, Operational Contract Support (OCS) dated December 20, 2011
    POLICY – It is DoD policy that:
      b. [I]n austere, uncertain, and/or hostile environments, the DoD may provide logistical support to ensure continuation of essential contractor services. Contractors authorized to accompany the force (CAAF) may receive Government-furnished support commensurate with the operational situation in accordance with the terms and conditions of their contract.

    ENCLOSURE 2 – PROCEDURES
    1. Requirements, Relationships, and Restrictions
      d. 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 … the specific support relationship between the contractor and the DoD.

    4. Contractor In-Theater Management Requirements
      e. Force Protection and Weapons Issuance.  CCDRs (Combatant Commanders) shall develop security plans for protection of CAAF … 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.
      (1) 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 (Joint Force Commander).

    CENTCOM 952.225-0013 – Contractor Health and Safety (Nov 2010)
    (b) The contractor shall correct all deficiencies within a reasonable amount of time of contractor becoming aware of the deficiency either by notice from the Government or a third party, or discovery by the contractor.

    3. Based on the reference to “Theater Business Clearance” in this inquiry, this response assumes that the service acquisition in question will support a contingency operation. Additionally, we also assume either that all contractor personnel are authorized to accompany the U.S. Armed Forces and will be covered by the clause at DFARS 252.225-7040, or that the contract terms will otherwise require the Government to provide a specified level of security support for contractor personnel engaged in this contract pursuant to DFARS 252.225-7995(b) & (c).

    4. As set forth in DoDI 3020.41 as described above, it is DoD policy that in austere, uncertain, and/or hostile environments, the DoD may provide logistical support to ensure continuation of essential contractor services. Additionally, the procedures specified in DoDI 3020.41 as described above also require CCDRs develop security plans for protection of CAAF … 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. 

    5. The procedures described above are reflected in clause DFARS 252.225-7040(c)(1)(i).  However, as indicated in DoDI 3020.41 – Procedures, Section 4, paragraph (e)(1), DFARS 252.225-7040(c)(1)(ii), and DFARS 252.225-7995(b) & (c), the contract terms and conditions must specify the level of protection to be provided to contractor personnel. Consequently, our response to this inquiry also assumes that the contract in question contains terms and conditions and/or a Performance Work Statement (PWS) that define the specific support relationship between the contractor and the Government which include the level of protection as determined by the CCDR to be provided to the contingency contractor personnel.

    6. As specified in FAR 52.245-1(i), the contractor is entitled to an equitable adjustment for certain specified deficiencies in Government-furnished property. While there are no similar provisions in any of the DFARS clauses listed above, we believe that it is not unreasonable for the contractor to request similar contractual coverage, i.e., an equitable adjustment in the contract price, the delivery schedule, or both, or other affected contract terms, if the Government does not provide the level of personnel protection set forth in the contract. In addition, our research pertaining to DoDI 3020.41 and other policy documents related to Theater Business Clearances did not disclose any prohibitions against including such an equitable adjustment clause into contingency service contracts. Furthermore, we perceive no express conflict with any other relevant FAR or DFARS clauses in using such a special clause the contract.

    7. Based on the above, we believe that in principle, the inclusion of such an equitable adjustment clause into the contingency contract terms and conditions that define the specific support relationship between the contractor and the Government would be allowable. However, because this inquiry does not provide sufficient insight into the acquisition situation in question, we cannot comment as to whether the specific relief being sought by the contractor as summarized in this inquiry is appropriate.

    8. Therefore, we recommend that the Contracting Officer obtain the advice of legal counsel and the assistance of appropriate program personnel in identifying any appropriate equitable adjustment due to the contractor for any failure to provide the Government-furnished support stipulated in the contract and in subsequently developing and negotiating the appropriate contract clause. In this regard, please note that the use of the term “reasonable time” is quite common in contract terms and conditions. For example, in clause CENTCOM 952.225-0013 used in certain contingency contracting situations, the contractor is provided with a “reasonable amount of time" to correct deficiencies discovered by the Government, by the contractor, or by a third party.


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