Background, Summary, and Analysis of DFARS

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1 18 Contract Manageent August 2013

2 Contract Manageent August

3 overseas contracts navigating the copliance inefield One of these requireents, recently published as a final rule aending Defense Federal Acquisition Regulation Suppleent (DFARS) , Contractor Personnel Authorized to Accopany U.S. Ared Forces Deployed Outside the United States, 1 expands the obligations of governent contractors with regard to cries by or against contractor personnel. In brief, DFARS now requires certain contractors to report to the appropriate investigative authorities any alleged offenses under the Unifor Code of Military Justice 2 or the Military Extraterritorial Jurisdiction Act. 3 Moreover, DFARS also requires contractors to provide all contractor personnel working in a deployed area with inforation about how and where to report alleged cries and where to seek victi and witness protection and assistance available in connection with alleged offenses. Governent contractors should dedicate the resources necessary to becoe failiar with the requireents unique to overseas perforance and, if necessary, revise internal policies and procedures to address these evolving and highly scrutinized requireents. This article addresses the newly enhanced reporting requireents under DFARS , and also provides an outline of several other personnelrelated requireents unique to governent contractors perforing work outside the United States. Background, Suary, and Analysis of DFARS Over the last decade or so, governent contractors have assued an ever-increasing role in the cobat theater. Although the overwheling ajority of 20 Contract Manageent August 2013

4 overseas contracts navigating the copliance inefield contractor personnel serve with the utost professionalis and honor, several highprofile reports of isconduct by contractor personnel including instances of contractor personnel sexually assaulting other contractor personnel have surfaced over the years. These reports have captured the attention of Congress and the general public alike, raising questions about how, when, and where contractors are to be held accountable for their actions. Huan rights groups have decried a culture of ipunity that is perceived to accopany private ilitary contractors perforing in cobat theaters. 4 Congress and the public have expressed outrage over reports that contractor personnel who were victis of violent cries, especially sexual assault, have received little or no help fro either contractor or governent officials. 5 In soe instances, contractor personnel who were victis of violent and/or sexual cries testified that their eployer the governent contractor either actively discouraged the fro reporting alleged assaults to the governent or disciplined the eployees/victis for doing so. 6 Congress has taken these allegations seriously, passing legislation to ensure contractor personnel know when and how to report cries and understand the legal protections available to whistleblowers. Through the National Defense Authorization Act for Fiscal Year 2009, 7 Congress recoended that the Departent of Defense ipleent echaniss to ensure governent contractors hold their personnel accountable for iproper conduct and ake contractor personnel who are victis of cries aware of the legal protections afforded to whistleblowers. 8 Part of the Departent of Defense s response to Congress recoendation 9 was to issue a final rule aending DFARS (d). This new rule, which becae effective February 28, 2013, places direct, specific responsibilities on governent contractors aied at addressing Congress and the public s concerns. DFARS is required to be included in solicitations and contracts that authorize contractor personnel to accopany U.S. ared forces deployed outside the United States in contingency operations, huanitarian or peacekeeping operations, or other ilitary operations or ilitary exercises when designated by the cobatant coander. 10 Aong other things, when DFARS is included in its contract, a governent contractor ust: Coply with and ensure that its personnel are failiar with and coply with all applicable United States, host country, and third country national laws ; Provisions of the law of war, as well as any other applicable treaties and international agreeents 11 ; United States regulations, directives, instructions, policies, and procedures ; and Orders, directives, and instructions issued by the cobatant coander, including those relating to force protection, security, health, safety, or relations and interactions with local nationals. 12 Institute and ipleent an effective progra to prevent violations of the law of war by its eployees and subcontractors, including law of war training 13 ; Contract Manageent August

5 overseas contracts navigating the copliance inefield considering the breadth of the Unifor Code of Military Justice and the Military Extraterritorial Jurisdiction Act, and how uch evidence is necessary to support allegations under these bodies of law. 18 Notwithstanding this criticis, the new requireents under DFARS have received support as well. For exaple, the Project On Governent Oversight wrote a letter of support when the aendent to DFARS was in its proposal stage, referencing the inial burden on contingency contractors to encourage witnesses and victis to report alleged cries. 19 Ensure that contractor personnel are aware Of the Departent of Defense definition of sexual assault in Departent of Defense Directive , Sexual Assault Prevention and Response Progra ; and That any of the offenses addressed by the Departent of Defense definition of sexual assault are covered under the Unifor Code of Military Justice and that other sexual isconduct ay constitute offenses under the Unifor Code of Military Justice, federal law, such as the Military Extraterritorial Jurisdiction Act, or host nation laws. 14 Report any alleged offenses under the Unifor Code of Military Justice or the Military Extraterritorial Jurisdiction Act to the appropriate investigative authorities, including the following: U.S. Ary Criinal Investigation Coand, Air Force Office of Special Investigations, Navy Criinal Investigative Service, Defense Criinal Investigative Service, and [A]ny coand of any supported ilitary eleent or the coand of any base. 15 Provide eployees, prior to beginning work in a deployed area, inforation addressing: How and where to report an alleged crie, and Where to seek victi and witness protection and assistance available to contractor personnel in connection with an alleged offense. 16 The newly ipleented reporting requireents of DFARS (d) are siilar to those found in DFARS , Additional Requireents and Responsibilities relating to Alleged Cries by or against Contractor Personnel in Iraq and Afghanistan (DEVIATION). The reporting requireents of DFARS have been widely criticized by industry as being both overly broad and vague. 17 Siilar criticiss are applicable to the requireents of DFARS Like DFARS , DFARS fails to identify which alleged offenses ust be reported. This vagueness is especially troublesoe In light of DFARS s newly aended requireents, governent contractors should review and odify, if required, their existing internal policies and procedures addressing the evaluation and reporting of isconduct allegations and the treatent of whistleblowers. Failure to satisfy these requireents could have negative consequences on the contractor s botto line, reputation, and ongoing viability in the federal arketplace. Additional Personnel-Related Copliance Requireents Applicable to Governent Contractors Perforing Overseas As previously discussed, the requireents of DFARS are intended to ensure that contractors perforing overseas actively participate in the local criinal justice process, as well as to ensure that contractor personnel are ade aware of the legal protections available to whistleblowers. In addition to DFARS , other requireents unique to overseas perforance exist, any of which address contractor personnel requireents and rights. Several of these requireents are outlined as follows. Huan Trafficking Federal Acquisition Regulation (FAR) , Cobating Trafficking in Persons, is required to be included in all solicitations and contracts. Recently, the National Defense Authorization Act for Fiscal Year 2013 created new 22 Contract Manageent August 2013

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7 overseas contracts navigating the copliance inefield requireents aied at cobatting huan trafficking. 20 Although yet to be ipleented in the FAR, the new requireents prohibit a governent contractor eployer fro: Inhibiting its eployees access to his or her iigration or identity docuents; Failing to provide return transportation for third-country nationals, unless an exception applies; Using false or fraudulent eans to solicit eployees; Charging unreasonable placeent or recruitent fees; and Failing to provide housing that eets the host country s housing or safety standards. 21 Governent contractors should anticipate these changes to be ipleented in upcoing FAR revisions and should take the steps required to ensure copliance with the new requireents. As with DFARS , contractors are required to infor their eployees of their rights and obligations under FAR Copliance with Local Labor Laws Many governent contractors perforing overseas regularly eploy and heavily rely on local nationals and third-country nationals for successful perforance. Contracts that include DFARS , Copliance with Local Labor Laws (Overseas), require governent contractors to coply with all local labor laws governing wages, working hours, and bargaining agreeents. These requireents change, of course, depending on the location in which the work will be perfored, so contractors should consider consulting a local eployent and labor law expert whenever necessary to reain in copliance with this requireent. Antiterroris and Force Protection DFARS , Antiterroris/Force Protection Policy for Defense Contractors Outside the United States, requires governent contractors to ensure that U.S. nationals working overseas register with the U.S. ebassy and that third-country nationals coply with their respective ebassy s requireents. Also, this clause requires contractors to obtain and provide their eployees and subcontractors the ost current guidance on antiterroris or force protection awareness. General Requireents for Contractor Personnel DFARS , Contractor Personnel Perforing in the United States Central Coand Area of Responsibility, requires that governent contractors perforing in the United States Central Coand Area of Responsibility provide their eployees with a wide range of inforation and training and ensure that eployees have all necessary licenses and clearances to perfor their work. For exaple, contractors are required to infor their eployees about when they ay use deadly force as self-defense, what protective gear they are allowed to wear, and the U.S. and foreign laws to which eployees ust adhere. Contractors ust also provide personal security training with specific iniu requireents and ensure their eployees have received all the necessary edical, physical, background, passport, and visa clearances necessary to enter and perfor work in the area of responsibility. Governent contractors are wise to devote the resources needed to understand, address, and coply with the array of requireents unique to doing business with the governent. The failure to navigate the copliance inefield could have negative consequences extending beyond diinished 24 Contract Manageent August 2013

8 overseas contracts navigating the copliance inefield profitability, including negative perforance reviews, a perception of reduced responsibility, and, in the ost extree cases, exclusion fro the federal arketplace and civil/criinal liability. Although copliance is iportant for all governent contractors, it is particularly iportant for those contractors perforing work outside the United States due to the increasing nuber and coplexity of requireents unique to overseas perforance. CM About the Authors HOLLY CHAPIN is an attorney serving as associate counsel for ANHAM USA, Inc. She provides copliance and legal services in support of ANHAM s contract perforance. She served in the Ary National Guard fro as a paralegal NCO, and she deployed to Kosovo in support of Operation Enduring Freedo in She received her JD fro the Aerican University Washington College of Law and MA in International Politics fro Aerican University s School of International Service. C. BRADFORD JORGENSEN is an attorney in the Governent Contract practice group of DLA Piper LLP (US), in Washington, DC. He provides counseling and litigation services to both large and sall copanies on a wide range of public procureent atters at the federal, state, and local level. Prior to joining DLA Piper, he served as agency counsel for the U.S. Departent of Justice, Federal Bureau of Prisons, representing the governent in a variety of contract actions. He received his LL.M. in governent procureent law fro The George Washington University and his JD fro the Syracuse University College of Law. Send coents about this article to c@ncahq.org. Endnotes 1. See 78 Fed. Reg , February 28, 2013 (final rule aending the DFARS to ipleent a section of the National Defense Authorization Act for Fiscal Year 2009, expanding coverage on contractor requireents and responsibilities relating to alleged cries by or against contractor personnel) U.S.C U.S.C See, e.g., Scott Horton, et al, Private Security Contractors at War: Ending the Culture of Ipunity, Huan Rights First (2008). 5. S. Rep. No (2008): Ibid., at Pub. L S. Rep. No , see note 5 ( The provision recoended by the coittee is intended to ensure that contractor eployees who are the victis of siilar assaults in the future are not deprived of their legal rights, and receive the help that they need and the investigative assistance that they deserve. ). 9. Note that the Departent of Defense ipleented other reporting echaniss, for exaple aendents to DFARS , Additional Requireents and Responsibilities relating to Alleged Cries by or against Contractor Personnel in Iraq and Afghanistan (DEVIATION). 10. DFARS (b)(1). 11. The ter law of war is defined as that part of international law that regulates the conduct of ared hostilities [and] encopasses all international law for the conduct of hostilities binding on the United States or its individual citizens, including treaties and international agreeents to which the United States is a party, and applicable custoary international law. (See DFARS (a).) 12. DFARS (d)(1). 13. DFARS (d)(2). 14. DFARS (d)(3). 15. DFARS (d)(4). 16. DFARS (d)(5). 17. See, e.g., David C. Haond, et al, Continuing Opportunities and Challenges in Iraq, Afghanistan, and Pakistan Contracting (Crowell & Moring LLP, 2010): See ibid., at See Letter fro Neil Gordon, Investigator at Project on Governent Oversight, to Meredith Murphy, Defense Acquisition Regulations Syste, available at letters/2012/co-ca contractoraccountability.htl. 20. See H.R. 4310, 112th Cong. (2013). 21. See ibid. Contract Manageent August