The Department of Defense (DoD) issued a proposed rule last week to update the policies and procedures for operational contract support (OCS) abroad. Born in the wake of the Iraq and Afghanistan wars, OCS is how DoD plans for and integrates contractor capabilities and personnel in support of operations outside the United States. DoD relies heavily on contractor support in nearly every military mission and operational setting. Therefore, implementing clear, up-to-date OCS guidance is critical not only to the successful execution of DoD's overseas missions, but to ensuring that contractors can effectively and safely perform their contractual obligations. Comments on the proposed rule are due March 8, 2021. 

Background on the OCS Regulations

The current OCS regulations, which appear in 32 C.F.R. Part 158, have been in effect since December 2013. Over the years, DoD and its service branches have separately adopted regulations and other policies on related subjects (e.g., anti-human trafficking regulations). But some of those regulations and policies were not fully addressed by or integrated into the OCS rules, leaving government officials and contractors often to determine applicable requirements on a case-by-case basis after they had already deployed. 

In revising the OCS regulations, DoD seeks to provide a central, updated source of operational guidance for overseas contracting, in large part, to ensure that military "commanders have a full understanding of what contracted support is needed and when; how requirements can be optimized and executed; and how the Department includes contracted support as part of the total force." The OCS updates also are aimed at addressing concerns raised by government oversight bodies, such as the U.S. Government Accountability Office (GAO), which in recent years have consistently identified OCS as an area of DoD contracting that is at "high risk" for fraud, waste, and abuse. According to DoD, the proposed rule codifies policy that will "reduce the likelihood . . . of waste, fraud, and abuse" and ensure that DoD contractors "are fully prepared to meet the requirements necessary to support operations outside the United States."

Summary of the Proposed OCS Rule and Its Potential Impact

There are five "major provisions" highlighted in the proposed OCS rule. Specifically, the rule:

1. Broadens the type of operations that contractors may support beyond contingency operations; 
2. Describes theater admission requirements for contractor personnel deploying in support of operations outside the U.S.; 
3. Clarifies the medical and dental fitness standards for deployed contractor personnel; 
4. Details the authorized government services that may be provided to contractors; and 
5. Removes internally facing guidance to streamline communication with the public. 

If adopted, these and other changes to the OCS regulations would impact overseas contracting in several important ways. Below we highlight a few of the notable changes DoD has proposed.

Confirming Contractors are Part of the DoD 'Total Force.' Department policy has long recognized that contractors are an integral part of DoD's "Total Force," yet this important designation has been noticeably absent from the current OCS regulations. The proposed OCS rule would change this by including a new definition of "Total Force" that includes "DoD Active and Reserve Component military personnel, military retired members, DoD civilian personnel (including foreign national direct- and indirect hires, as well as non-appropriated fund employees), contractors, and host-nation support personnel." (emphasis added). By designating contractors as part of the Total Force, the proposed regulations further emphasize that DoD must carefully plan for the integration of contracted support before deployment, while reflecting the modern reality that contractors often perform duties on the battlefield and elsewhere that the military once performed for itself. At the same time, the new regulations would reinforce longstanding Department rules governing the contractual chain of command, making clear that, while commanders set priorities and requirements, only contracting officers have authority to direct a contractor's work.

Broadening the Range of Operations Contractors May Support. At present, the OCS rules apply only to overseas "contingency operations," which are defined as operations "in which members of the armed forces are or may become involved in military actions, operations, or hostilities against an enemy of the United States or against an opposing military force." See 10 U.S.C. § 101(a)(13). But the scope of the current OCS regulations does not reflect the full range of operations that DoD components are called upon to support, such as the response to the 2014 Ebola outbreak in Liberia and West Africa. The proposed regulations expand the OCS rules beyond contingency operations to applicable operations, defined as "contingency operations, humanitarian assistance, or peace operations conducted outside the United States and other activities, including operations and exercises outside the United States as determined by a combatant commander (CCDR) or as directed by the Secretary of Defense." Among other things, this change would ensure that uniform operational policies apply to virtually every major category of DoD operations—including contingency operations, disaster relief, humanitarian assistance, military exercises, and peace operations. 

Clarifying Medical and Dental Requirements for Contractor Personnel. The proposed rule reiterates existing DoD policy that requires contractors to verify "the medical, dental, and psychological fitness of their employees." But in doing so, it also clarifies the specific health standards that contractor employees are required to meet, consistent with DoD Directive 6200.04, Force Health Protection (FHP), and instructs military commanders "to establish force health protection policies and programs for the protection of all forces assigned or attached to their command in accordance with force health protection (FHP) standards and applicable medical and dental standards of fitness." DoD's proposed rule also would make minor modifications to existing pre-deployment procedures for providing theater-specific immunizations to contractor personnel, as well as the Department's guidance on Armed Forces Repository of Specimen Samples for the Identification of Remains (AFRSSIR). Collectively, these proposed changes would bolster the existing process for confirming the fitness of contractor personnel prior to deployment, while also ensuring that the military plans adequately to help keep those personnel healthy when serving abroad. 

Outlining Considerations for the Provision of U.S. Government Support to Contractors. Contractors generally are responsible for providing their personnel all life, mission, medical, and administrative support necessary to perform their contract obligations and comply with applicable DoD policy. But in some operations, particularly those in which conditions are austere, uncertain, or non-permissive, OCS policy authorizes the military to provide selected categories of support to ensure that contractors can continue to provide essential services. Current OCS regulations describe authorized government support, or "AGS," in general terms and in separate subsections addressing selected topics, such as the provision of military Individual Protective Equipment (IPE), clothing, weapons, mortuary affairs, and medical support and evacuation. See gen. 38 C.F.R. § 158.6. For clarity, the proposed rule reorganizes these topics under a single heading, titled "Considerations for Support to Contractors." The new rule also would require DoD to specify the level of AGS (and any AGS services requiring reimbursement to the government) in the "solicitation and contract," not just the awarded contract. Compare Proposed OCS Rule § 158.5(f)(ii), with 32 C.F.R. § 158.6(c)(7) ("The contract shall specify the level of Government-furnished support to be provided . . ."). This requirement presumably would assist contractors in preparing their technical and pricing proposals and help minimize misunderstandings regarding the AGS to be provided under particular contracts. 

Providing More Detailed Procedures for Tracking and Managing Contractor Personnel. The current OCS regulations designate the "Synchronized Predeployment and Operational Tracker" (SPOT) system as the central electronic database for tracking the identity, status, and location of contractor personnel who deploy in support of military operations. The existing rules provide little detail on when or how to register individual personnel in SPOT, however. They instead direct government and contractor personnel to external guidance and include general statements about requiring compliance with the terms and conditions of awarded contracts. See 32 C.F.R. § 158.6(c)(3). The new OCS rules address this, in part, by including a breakdown of the registration requirements for particular categories of personnel—including U.S. citizens, Third Country Nationals (TCNs), Local Nationals (LNs) and personnel who provide linguist or private security services. They also provide better visibility into the data that is stored in the system—e.g., total number of contractor personnel, total number of private security personnel, total number of contractor personnel who are killed or injured while performing under DoD contracts. Similarly, the proposed rule includes expanded guidance regarding the in-theater management of contractor personnel. For example, on the all-important topic of physical security, the new rules codify the Department's existing policy of providing military force protection to contractor personnel only to the extent that "it is not operationally or cost effective for contractors" to provide for their own security, either by contracting with a private security company or obtaining the government's permission to arm their personnel. 

Conclusion

DoD's proposed OCS regulations contain numerous updated provisions that, if adopted, will apply to a significantly broader spectrum of military operations, ranging from contingency operations to peace keeping. Many of the proposed updates would merely reorganize and clarify existing OCS regulations and policy, but others could have a substantive impact on how DoD contractors prepare and execute their operational plans in overseas environments. For this reason, impacted DoD contractors should carefully review the proposed OCS regulations and consider submitting comments to DoD by March 8, 2021. 

For more information, please contact:

Alex L. Sarria, asarria@milchev.com, 202-626-5822

Jason N. Workmaster, jworkmaster@milchev.com, 202-626-5893

Connor Farrell, a Miller & Chevalier law clerk, contributed to this client alert.

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