What the contract can and cannot do abroad

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1. What the command must publish

The procedures in 32 CFR 158.5 begin with publication. Combatant commanders make management policies and specific contract support requirements available to affected contractor personnel (32 CFR 158.5(a)). The geographic combatant commander’s operational contract support web page sets out nine kinds of information. They are theater business clearance requirements for contracts performing in the command’s area of responsibility, and restrictions from local law, international law, status of forces agreements and other host nation agreements.

The page also covers deployment requirements for contractors authorized to accompany the force (CAAF) (32 CFR 158.5(a)(3)). Those include pre-deployment and individual protective equipment training, physical health standards, immunization and medical requirements, and deployment and theater reception procedures. The remaining items are reporting requirements for accountability and visibility, operational security plans, force protection policies and personnel recovery procedures (32 CFR 158.5(a)(4) to 32 CFR 158.5(a)(7)). The last two are the availability of medical and other authorized government support, and redeployment procedures, including disposition of government-furnished equipment (32 CFR 158.5(a)(8) and 32 CFR 158.5(a)(9)).

2. The contract is the only legal basis

The contract provides the only legal basis for the relationship between the Defense Department and the contractor (32 CFR 158.5(b)). The contracting officer is the only individual with legal authority to enter into that binding relationship. Commanders can restrict installation access, and contractor personnel must follow combatant commander and local commander force protection policies (32 CFR 158.5(b)(1)). However, military commanders and unit personnel have no contracting authority over contractors and may not direct them to perform contractual tasks. The contract also gives commanders no basis to exercise operational or tactical control over contractors, or to assign or attach them to a command.

The contract must specify the terms under which the contractor performs, including minimum acceptable professional and technical standards (32 CFR 158.5(b)(2)(i)). It must state how the contracting officer will notify the contractor of deployment procedures, and the specific support terms agreed between the contractor and the Department (32 CFR 158.5(b)(2)(ii) and 32 CFR 158.5(b)(2)(iii)). It must provide for flowdown of provisions and clauses to subcontractors, and state that service by contractor personnel is not active duty or active service (32 CFR 158.5(b)(2)(iv)). It must also contain clauses for efficient deployment, accountability, visibility, protection and redeployment, and detail authorized levels of health service, sustainment and other support (32 CFR 158.5(b)(3)).

3. Inherently governmental functions

Federal acquisition rules, Public Law 105-270 and Office of Management and Budget Circular A-76 bar inherently governmental functions from private sector performance (32 CFR 158.5(c)(1)). Within that limit, the rule lists, without limiting it, support contractor personnel may provide during applicable operations (32 CFR 158.5(c)(2)). The list includes transporting munitions and other supplies, communications support, maintenance of military equipment, and force protection and private security services. It also includes interpretation and translation, logistics services such as billeting and messing, intelligence surveillance and reconnaissance support, and commercial air assets.

The requiring official reviews each service performed by contractor personnel in applicable operations case by case, to check compliance with the rule and with applicable law and international agreements (32 CFR 158.5(c)(3)). A contractor may be authorized to provide private security services only if that is consistent with American, local and international law, applicable host nation agreements, and 32 CFR part 159 (32 CFR 158.5(c)(4)). Those private security rules are covered in how private security contractors are governed.

4. Trafficking in persons

The rule states that trafficking in persons violates American law and internationally recognized human rights, and is incompatible with Defense Department core values (32 CFR 158.5(d)). The acquisition rules on combating trafficking, 48 CFR subpart 222.17 and 48 CFR 52.222-50, describe how contractors, contracting officers and commanders must deter related activities (32 CFR 158.5(d)(1)). The rule names prostitution and forced labor among them.

Contracts supporting applicable operations must require the contractor to remove personnel determined to have engaged in trafficking-related activities from performance of the contract (32 CFR 158.5(d)(2)). The contractor must return them from the operational area to their home of record, point of origin or another authorized location, at the end of performance or sooner if the contracting officer directs. Once notified of an incident, the contracting officer notifies the responsible commander in the area of responsibility and provides information needed to support an investigation.

5. Law of war terms

Contract work statements for contractors and subcontractors must comply with Defense law of war policy (32 CFR 158.5(e)). They must require contractors whose activities are governed by the law of war to run effective programs preventing violations by their employees and subcontractors. Those programs include law of war dissemination and periodic training suited to each person’s duties. Contracts must also require employees to report reportable incidents to the appropriate commander, such as the commander of the unit they accompany or of the installation to which they are assigned, or to a command-designated office.

6. Government support written into the contract

Contracts supporting applicable operations must generally require contractors to provide their personnel all life, mission, medical and administrative support needed to perform (32 CFR 158.5(g)(1)). That support must also meet the combatant commander’s guidance on the command web page. In some operations, especially austere, uncertain or non-permissive ones, the combatant commander may decide it is in the government’s interest to allow contractor personnel access, consistent with Defense regulations, to selected authorized government support. The contract must then state the level of access in its terms and conditions.

In those conditions, the contracting officer consults the requiring activity on whether selected support for certain contractor personnel is in the government’s interest (32 CFR 158.5(g)(1)(i)). The solicitation and contract must specify the level of support the government will provide and which support is reimbursable (32 CFR 158.5(g)(1)(ii)). Access to Defense benefits made possible by the identification card may be granted to contractors in certain circumstances (32 CFR 158.5(g)(1)(iii)). The individual types of support are covered in government support to deployed contractors.

Key terms

Command web page	The geographic combatant commander’s page setting out operational contract support requirements.
Contractual relationship	The relationship whose only legal basis is the contract, entered by the contracting officer.
Inherently governmental function	A function the cited acquisition rules and Circular A-76 bar from private sector performance.
Reportable incident	An incident contractor employees must report to the appropriate commander under law of war policy.
Authorized government support	Government support the contract permits, at the level its terms state.

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

Clear contract terms are the starting point for 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.