Conduct, rights and accountability for deployed contractors

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1. Laws, the law of war and a prevention program

The Defense clause for contractors supporting deployed forces, DFARS 252.225-7040, sets detailed rules on conduct and accountability. Its scope and support rules are covered in supporting deployed forces under DFARS 252.225-7040. The contractor must comply with, and make sure its personnel know and comply with, four sets of rules. They are American, host country and third country laws, the law of war and other treaties, and American regulations and policies. The fourth is the combatant commander’s orders, including on force protection, security, health, safety and relations with local nationals (DFARS 252.225-7040). It must also run an effective program to prevent violations of the law of war by its employees and subcontractors, including law of war training.

2. Sexual assault and crime reporting

Personnel must be made aware of the Defense Department definition of sexual assault in its prevention and response directive (DFARS 252.225-7040). They must also know that many such offenses are covered by the Uniform Code of Military Justice. Other sexual misconduct may be an offense under the Code, under federal law such as the Military Extraterritorial Jurisdiction Act, or under host nation law. Conduct outside the Code can still have consequences for the employee.

The contractor must report to investigative authorities any alleged offense under the Uniform Code of Military Justice or the Military Extraterritorial Jurisdiction Act. The Code applies to contractors serving with or accompanying an armed force in the field during a declared war or contingency operation (DFARS 252.225-7040). Before work starts, all personnel must be told how and where to report an alleged crime, and where to seek victim and witness protection and assistance. The authorities listed include the Army Criminal Investigation Command, the Air Force Office of Special Investigations, the Naval Criminal Investigative Service, the Defense Criminal Investigative Service, and any command of a supported military element or base. Whistleblowers seeking protection from reprisal are directed to the Defense Department Inspector General hotline.

3. Rights of contractor employees

The contractor must make sure its employees supporting American forces know nine rights (DFARS 252.225-7040). They may hold their own identity and immigration documents, such as passports, whoever issued them. They must receive agreed wages on time, at no less than the host country’s legal minimum wage. They may take lunch and work breaks, end their employment at any time, and raise grievances without fear of reprisal. They must have a copy of their employment contract in a language they understand, and be told their rights, wages and prohibited activities before signing it. If housing is provided, it must meet host country housing and safety standards.

The contractor must post these rights in work spaces in English and in any language spoken by a significant part of the workforce (DFARS 252.225-7040). It must also enforce them.

4. Jurisdiction notices

Personnel who are not host country nationals, or not ordinarily resident there, must be told about the reach of American criminal law (DFARS 252.225-7040). Under the Military Extraterritorial Jurisdiction Act of 2000, they and dependents living with them may potentially face American criminal jurisdiction. That covers conduct abroad that could bring a sentence of over a year in prison if it took place within the special maritime and territorial jurisdiction of the United States. Federal jurisdiction also covers war crimes by civilian American nationals, and other laws cover offenses on the premises of American missions abroad. In a declared war or contingency operation, CAAF are subject to the Uniform Code of Military Justice. Personnel must report offenses by or against contractor personnel, and will receive victim and witness protection and assistance.

5. Tracking

CAAF must process through the deployment center named in the contract, or as the contracting officer directs, before deploying. They use the departure point and transport the contracting officer directs, and process through a designated reception site on arrival (DFARS 252.225-7040). The reception site validates accountability, checks entry requirements and briefs theater policies. The contractor must enter and maintain data in SPOT for all CAAF, and for non-CAAF where the Under Secretary of Defense for Acquisition and Sustainment or the combatant commander requires it. Status changes, from arrival and duty location to closing out a deployment as mission complete, killed or wounded, must be recorded within the SPOT business rules’ timelines.

6. Personnel, equipment and weapons

The contracting officer may direct the contractor, at its expense, to remove and replace personnel who jeopardize or interfere with the mission or break the contract’s rules (DFARS 252.225-7040). The contractor must identify personnel in positions designated mission essential and keep essential services going, unless the contracting officer, after consultation, directs withdrawal for security reasons. Government identification, including the Common Access Card, must be returned at the end of a deployment, or for non-CAAF at the end of their employment under the contract. Military clothing needs the combatant commander’s written authorization, carried at all times, with distinctive markings. Issued protective equipment must be returned.

Requests to carry weapons for individual self-defense go through the contracting officer to the combatant commander, who decides whether to authorize them and with what weapons and ammunition (DFARS 252.225-7040). Armed personnel must be trained, must not be barred from possessing firearms, must follow the commander’s orders and force protection policies, and must understand the risk of prosecution and civil liability. All liability for weapon use rests with the contractor and the employee.

7. Scarce goods, evacuation and recovery

Where the combatant commander has set up an organization to designate scarce goods or services, the contractor must coordinate local purchases of them with it, following the contracting officer’s instructions (DFARS 252.225-7040). In a mandatory evacuation, the government assists American and third country national contractor personnel to the extent available. In a non-mandatory evacuation, the contractor keeps enough personnel in place unless the contracting officer authorizes otherwise in writing. The contractor notifies next of kin if an employee dies, is evacuated for injury, or is isolated, missing, detained, captured or abducted, and the government assists personnel recovery. Personnel who die supporting American forces are covered by the Defense mortuary affairs program. The clause flows down to subcontracts in the same operations.

Key terms

Prevention program	The contractor’s program to prevent law of war violations, including training.
Worker rights notice	The posted list of nine employee rights, in English and the workforce’s languages.
Designated reception site	The arrival point that validates accountability and briefs theater rules.
Mission essential	Positions so designated, for which the contractor must keep essential services going.
Scarce goods	Items a command organization designates for coordinated local purchase.

Every statement above links to the document behind it. The full source list for this piece is on the sources page.

This page describes public United States government programs for general information. It is not legal, regulatory or procurement advice, and it does not address the facts of any particular case.

How Sentfore supports this

Accountable teams are the foundation of safe operations abroad. Sentfore works at the delivery end of defense programs in difficult environments, providing secure movement, protective security, facilities and life support. Requirements can be sent through the contact page.