14 FAM 240
CONTINGENCY OPERATIONS AND CRITICAL ENVIRONMENT
CONTRACTING
(CT:LOG-262; 04-18-2019)
(Office of Origin: A/LM)
14 FAM 241 POLICY AND OBJECTIVES
(CT:LOG-262; 04-18-2019)
a. This subchapter sets forth Department of State
requirements for planning and executing contracting in support of contingency
operations and mission activities in critical environments overseas.
b. Except for whereas stated, the policies set forth in
this subchapter apply to areas that the Department of Defense (DoD) has
designated as overseas contingency operations, as defined in 10 U.S.C.
101(a)(13).
c. At the discretion of the Under Secretary for
Management (M), this policy may be applied to other overseas locations that are
not DoD-designated contingency operations. For the purpose of this policy,
these other overseas locations are referred to as "critical
environments." See 14 FAM 244.4-2,
paragraph a, for guidance on how the Under Secretary for Management may
determine what constitutes a critical environment.
d. Summary of general policies:
(1) DoD is authorized by Congress to declare
contingency operations. Once an overseas contingency operation is designated,
certain planning and reporting activities are required by Sections 846(b) and
847 of the National Defense Authorization Act for Fiscal Year 2013, Public Law
112-239;
(2) Public Law 112-239 also requires coordination
among DoD, the U.S. Agency for International Development, and the Department of
State. This coordination is accomplished through the Critical Environment
Contracting Analytics Staff, in the Office of Logistics Management, Bureau of
Administration (A/LM/CECAS);
(3) No later than 6 months after DoD commences or
designates a contingency operation outside the United States that includes or
is expected to include combat operations, the Department must perform a
comprehensive risk assessment and develop a risk-mitigation plan addressing
operational risks associated with contractor performance of critical functions
when:
(a) The military operation is expected to continue for
more than 1 year;
(b) The total amount of obligations for Department
contracts in support of the operation is expected to exceed $250 million; and
(c) If a risk assessment and risk mitigation plan have
not been previously performed, the Department has 60 days after the date the
operation has actually continued for more than 1 year, or after the
Department's total amount of obligations for contracts for support of the operation
actually exceeds $250 million;
(4) Resource requirements for Office of Acquisitions
Management (A/OPE/AQM) contracting
officers to support contingency contracting are estimated by the head of
contracting activity (HCA). Financial estimates for contract award support are
included in and managed under the A/OPE/AQM Working
Capital Fund (WCF);
(5) Resource requirements for contingency operation
program managers, contracting officer's representatives (CORs), including
property administrators and plant clearance officers, are estimated by the
responsible funding bureaus or program offices. These resource requirements
are included in financial estimates provided to the Bureau of Budget and
Planning (BP) and the Office of U.S. Foreign Assistance Resources (F), as
applicable;
(6) The Department's 5-year Acquisition Workforce
Human Capital Plan is coordinated by the Office of the Procurement Executive
(A/OPE) in conjunction with the Bureau of Human Resources (HR). A/OPE/AQM estimates requirements for contracting
officers and contract specialists. Bureaus estimate requirements for program
managers and CORs. HR uses the input from the Acquisition Workforce Human
Capital Plan and funding bureaus or program offices to support the development
of the Department's 5-year Workforce and Leadership Succession Plan; and
(7) Detailed assessments of the necessity and
sustainability of capital foreign assistance projects, above designated
thresholds, in support of contingency operations, and which are for the benefit
of the host government, must be documented. Section 1273(c) of Public Law
112-239 provides waiver authority by the Secretary of State. Contact
A/LM/CECAS for coordination of any waiver request.
14 FAM 241.1 Authorities
(CT:LOG-212; 05-11-2016)
Authorities include the National Defense Authorization Act
for Fiscal Year 2013, Public Law 112-239, which requires the Department to
issue guidance regarding data collection (Section 844); perform comprehensive
risk assessment; develop risk mitigation plan (Section 846); submit reports to
Congress on overseas contingency contract support (Section 847); and conduct
sustainability assessments on capital projects (Section 1273).
14 FAM 241.2 Responsibilities
(CT:LOG-212; 05-11-2016)
a. The Secretary of State vests contingency operation
contract management responsibility in the Under Secretary for Management (M).
The Under Secretary is responsible for major contingency contracting policy
decisions.
b. 41 U.S.C. 1702(b)(3)(F) requires that the Chief
Acquisition Officer (CAO) be responsible for advising the Department on the
applicability of relevant policy on the contracts of the Department for
overseas contingency operations and ensuring compliance of the contracts and
contracting activities of the Department with such policies.
c. Acquisition policy is promulgated by A/OPE.
d. A/LM/CECAS is responsible for Department-wide
coordination to develop risk assessments and risk-mitigation plans for
contractor support in designated contingency operation areas, as well as critical
environments as determined by the Under Secretary for Management (per 14 FAM 244.3 and 14 FAM 244.4).
A/LM/CECAS is also responsible for developing on an annual basis the
recommended critical environment list for approval by the Under Secretary for Management,
per 14 FAM
244.4-2, paragraph a.
14 FAM 241.3 Definitions
(CT:LOG-212; 05-11-2016)
a. Contingency operation: See
10 U.S.C. 101(a)(13) for the exact definition. This generally refers to a
military operation that:
(1) Is designated by the Secretary of Defense as an
operation in which members of the armed forces are or may become involved in
military actions and operations; or
(2) Results in the call or order to, or retention on,
active duty of members of the uniformed services under any provision of law
during a war or during a national emergency declared by the President or
Congress.
b. Private security functions:
See the exact definition in Section 864 of Public Law 110-181 and associated
regulation FAR Part 25.302-2. This generally means activities engaged in by a
contractor under a covered contract including guarding personnel, facilities,
or property of a Federal agency, the contractor, or subcontractor, or a third
party. It includes any other activity for which personnel are required to carry
weapons in the performance of their duties in accordance with the terms of the
contract.
14 FAM 242 DECLARATION OF A CONTINGENCY
AND ESTABLISHMENT OF COORDINATION
(CT:LOG-212; 05-11-2016)
The Department will be notified via Department of Defense
(DoD) Executive Secretary Memorandum of the formal declaration by the Secretary
of Defense of a contingency operation as defined in 10 U.S.C. 101(a)(13). The
Under Secretary for Management may also issue a determination that the policies
of this subchapter apply to a specific situation that is not a DoD-designated
contingency, as specified in 14 FAM 241,
paragraph c.
14 FAM 243 CONTINGENCY CONTRACT
TRACKING AND OVERSIGHT
14 FAM 243.1 Collection of Data
(CT:LOG-262; 04-18-2019)
a. Section 844 of Public Law 112-239 requires the
Department of State to issue guidance regarding data collection on contract
support for contingency operations outside the United States that involve
combat operations, not later than a year after the January 2, 2013 enactment of
Public Law 112- 239. The required guidance is contained in this section. The
Deputy Assistant Secretary, Office of Logistics Management (A/LM), is
responsible for contracting data collection and report creation.
b. The law requires the Department to have the
capability to collect and report, at a minimum, the following data regarding
such contract support:
(1) The total number of contracts entered into as of
the date of any report. The information is collected by the Office of
Acquisition Management (A/OPE/AQM) from
the Federal Procurement Data System (FPDS) based on sorting by place of
performance and date of award. The data from FPDS is compared to data from the
Synchronized Pre-Deployment Operational Tracker (SPOT) to ensure accuracy;
(2) The total number of such contracts that are active
as of such date. The information is collected by A/OPE/AQM from the FPDS based on sorting by
place of performance and period of performance;
(3) The total value of contracts entered into as of
such date. The information is collected by A/OPE/AQM
from the FPDS based on sorting by place of performance, date of award,
and descending value;
(4) The total value of such contracts that are active
as of such date. The information is collected by A/OPE/AQM from the FPDS based on sorting by
place of performance, period of performance, and descending dollar value;
(5) An identification of the extent to which the
contracts entered into as of such date were entered into using competitive
procedures. The information is collected by A/OPE/AQM
from the FPDS based on sorting by place of performance, date of award,
and competition status;
(6) The total number of contractor personnel working
under contracts entered into as of the end of each calendar quarter during the
1-year period ending on such date. The information is collected by A/OPE/AQM based on the number of contractor
personnel registered in the SPOT system used to record contractor personnel
deploying to a contingency area;
(7) The total number of contractor personnel performing
security functions under contracts entered into as of the end of each calendar
quarter during the 1-year period ending on such date. The information is
collected by A/OPE/AQM from the SPOT
database. Job titles within SPOT categorize an individual as a security
contractor; and
(8) The total number of contractor personnel killed or
wounded under any contracts entered into. The information is entered into the
SPOT database by the contractor. Serious incident reports involving
contractors are monitored by posts' regional security officers and may be used
to assist in verification of data. Company administrators and assigned CORs
are responsible for ensuring data is entered into the SPOT database.
14 FAM 243.2 Requirements
Development and Management
(CT:LOG-212; 05-11-2016)
a. Requirements are defined by the funding bureau. For
example, Overseas Buildings Operations defines construction requirements and
Diplomatic Security defines security requirements.
b. Requirements must be evaluated for sustainability
and ability to achieve results. In contingency operation posts and designated
critical environments, programs must be assessed to determine if sufficient
infrastructure and expertise will be available to maintain the contracted
effort. Performance metrics must be developed to ensure achievement of
results.
c. Foreign assistance requirements over $10 million
will be coordinated with other agencies operating in the contingency post or
critical environment to ensure no duplication or overlap of requirements. A
coordinating working group will be established by the Office of U.S. Foreign
Assistance Resources (F) within 120 days of the declaration of a contingency
operation.
d. A determination must be made as to whether
requirements must be met through performance by government personnel or through
contractor support. The requirements package must contain an assessment
pursuant to Procurement Information Bulletin (PIB) 2012-11, Preventing
Contractor Performance of Inherently Governmental Functions, indicating whether
the task is inherently governmental and must be performed by government
personnel, or if it can be achieved through contractor support. The
requirements package must consider any risks to the U.S. Government from the
use of contractors, as indicated by the risk assessment and any risk mitigation
plan, thus requiring the use of government personnel instead of contractor
support.
14 FAM 243.3 Sustainability
Assessments for Certain Foreign Assistance Capital Projects
(CT:LOG-212; 05-11-2016)
a. Section 1273 of Public Law 112-239 requires initial
sustainability assessments of certain foreign assistance projects, along with
semi-annual reporting of these assessments to Congress.
b. Please review Public Law 112-239, Section 1273, for
specific details on what the assessments must evaluate to document the
necessity and sustainability of the project.
c. The Office of U.S. Foreign Assistance Resources (F)
manages the semiannual Congressional reporting process, while individual
project offices and posts are responsible for preparing the sustainability
assessments, per 14 FAM 243.3-1.
14 FAM 243.3-1 Requirement for
Sustainability Assessments
(CT:LOG-212; 05-11-2016)
a. Section 1273 of Public Law 112-239 requires initial
sustainability assessments of certain capital projects that exceed $5 million
and are funded by the Department of State for an overseas contingency operation
for the benefit of a host country. The section also requires semi-annual
reporting of these assessments to Congress.
b. In addition to the requirements of Section 1273, the
Presidential Policy Directive on Global Development (#6, issued in FY 2011) and
Security Sector Assistance (#23, issued in FY 2013), and the Quadrennial
Diplomacy and Development Review, all stress the critical importance of
emphasizing sustainability of foreign-assistance investments to the greatest
extent possible and practicable. Sustainability is achieved when host-country
partners and beneficiaries are empowered, and have the capacity, to take
ownership of development processes, including financing and maintaining project
results and impacts once the U.S. Government ceases financial contributions
towards a project. The Department of State is committed to working with
host-country partners when designing projects to:
(1) Define the degree of sustainability that is
considered essential for the success of a project;
(2) Reference specifically the sustainability
objectives of the project or project components (with the understanding that
not all projects aim to be fully sustainable at their conclusion) in bilateral
agreement documents; and
(3) Indicate, prior to project approval and
implementation, how the project intends to meet these sustainability
objectives.
c. In order to ensure that our resource allocations
are strategic, efficient, and effective for both the Department of State and
the host country, a review of project sustainability should be part of every
project designed that will use foreign-assistance funding. This is
particularly true of infrastructure projects which can include large-scale,
up-front investments that have ongoing operations and maintenance expenses that
must be continued if the project is going to provide sustained value.
Therefore, prior to the approval and subsequent start of any infrastructure
project with U.S. foreign-assistance funds where the total life-of-project cost
will exceed $5 million, a sustainability assessment must be undertaken. This
requirement applies regardless of whether the infrastructure project is for an
overseas contingency operation.
14 FAM 243.3-2 Elements of
Sustainability Assessments
(CT:LOG-212; 05-11-2016)
The elements of the assessment required by 14 FAM 243.3-1 will include:
(1) An estimate of the total cost of the completed
project to the United States;
(2) An estimate of the financial and other
requirements necessary for the host government to sustain the project on an
annual basis after completion of the project;
(3) An assessment whether the host government has the
capacity (in both financial and human resources) to maintain and use the
project after completion;
(4) A description of any arrangements for the
sustainment of the project following its completion if the host government
lacks the capacity (in financial or human resources) to maintain the project;
and
(5) An assessment of whether the host government has
requested or expressed its need for the project, and an explanation of the
decision to proceed with the project absent such request or need.
14 FAM 243.3-3 Approval, Waiver,
and Reporting of Sustainability Assessments
(CT:LOG-212; 05-11-2016)
a. Sustainability assessments required under 14 FAM 243.3-1
must be conducted, and approved, prior to obligation of funds (subobligation if
initial obligation is through an over-arching instrument, such as a letter of
agreement). Assessments must be approved by the chief of mission (COM) or his
or her delegate responsible for coordinating foreign assistance programs, as
well as the Assistant Secretary of the funding bureau or his or her designee.
In addition to these approvals, assessments of capital projects for contingency
operations required under Section 1273 of Public Law 112-239 must be approved
by F.
b. The COM may waive the requirement to conduct this
assessment prior to the initiation of the project if the COM determines that
immediate initiation of the project is in the national security, diplomatic, or
humanitarian interests of the United States and delaying the start of the
project to conduct the assessment would jeopardize these interests.
Assessments of capital projects for contingency operations, required under
Section 1273 of Public Law 112-239, must also be approved by F. Not later
than 90 days after the issuance of the waiver, the mission must submit
the approved sustainability assessment as described herein.
c. Copies of all final assessments, along with any
waivers, must be submitted to F within 10 business days of completion of the
final assessment or approval of the waiver. F will retain the
assessments/waivers. Assessments of capital projects for contingency
operations required under Section 1273 of Public Law 112-239, or waivers of
such assessments, will be provided to Congress by the implementing bureau in a
semi-annual report required by Section 1273(d) and to the appropriate
committees as outlined in Section 1273(e)(1).
14 FAM 243.4 Acquisition Planning
(CT:LOG-262; 04-18-2019)
a. Written acquisition planning is required pursuant to
Federal Acquisition Regulation (FAR) 7.105 for all acquisitions over $5 million.
The required contents of acquisition plans are specified in the FAR at 7.105.
b. Acquisition plans for contingency operations require
special attention in several areas:
(1) Interagency acquisition support;
(2) Avoiding conflicts of interest;
(3) Determining the appropriateness of performance by
contractor personnel;
(4) Risks of contractor support;
(5) Life support to be provided by post; and
(6) Contract administration.
c. Acquisition plans for critical environments
designated by the Under Secretary for Management require the same special
attention stated in 14 FAM 243.4,
paragraph b.
d. When a contract is being considered for performance
in a DoD-designated contingency operation area, A/OPE/AQM
and the funding bureau or program office shall notify A/LM/CECAS, which
will provide support regarding the evaluation of risk to contractors and the
development of risk mitigation strategies. The same shall apply for contracts
in critical environments that M designates as requiring risk mitigations.
14 FAM 243.5 Solicitation and Award
of Contracts
(CT:LOG-262; 04-18-2019)
a. The Department of State's acquisition strategy for
supporting contracting operations relies on "reach-back" centralized
contracting support established within the Washington, DC acquisition
management office A/OPE/AQM, in
coordination with bureaus and posts. A/OPE/AQM also
utilizes the regional procurement support offices in Fort Lauderdale, Florida,
and Frankfurt, Germany, as needed. This same strategy is used to support
contingency or critical environment contracting operations.
b. The need for other forward-deployed acquisition
support offices in the country of conflict or in neighboring countries will be
determined by the CAO in consultation with the A/LM Deputy Assistant Secretary
and the Procurement Executive. A written determination will be made by the CAO
on the establishment of any forward deployed support offices.
c. A/OPE/AQM will
assess periodically the staffing required to support operations. The Working
Capital Fund provides a method of increasing staffing in response to increased
acquisition workload. Acquisition staffing will be estimated as part of the
annual Acquisition Workforce Human Capital Plan. Tools to support increases in
acquisition support include an on-going acquisition intern program,
pre-approved acquisition position descriptions, identification of retired
acquisition professionals available for assignment (both Foreign Service and
Civil Service) and open staffing announcements.
d. The efficiency and effectiveness of interagency
support options such as acquisition support under the Economy Act (31 U.S.C.
1535) or other authorities should be part of planning.
e. A/LM/CECAS will act as the interagency acquisition
agreement advisor/coordinator for the Department during contingency
operations. A/LM/CECAS will follow appropriate FAR requirements, as
applicable, including: FAR 2.101, Definitions; FAR 17.5, Interagency
Acquisitions; PIB 2013-03, Acquisition Agreements; and PIB 2014-05,
Non-Acquisition Interagency Agreements.
14 FAM 244 CONTINGENCY OPERATIONS AND
CRITICAL ENVIRONMENT CONTRACT MANAGEMENT
14 FAM 244.1 Contingency Operation
and Critical Environment Contract Administration
14 FAM 244.1-1 Planning
(CT:LOG-262; 04-18-2019)
a. Bureaus with contracting requirements in any
contingency operations country or in a critical environment where the Under
Secretary for Management has determined risk mitigation plans are required must
plan for contract administration from the start of requirements determination,
and shall coordinate closely with A/LM/CECAS. Resources and funding available
for contract administration must be an element of the acquisition plan and
address requirements in the risk mitigation plan for the contract. Assistant
Secretaries of bureaus with service-contract requirements that will exceed $25
million per year must certify that adequate financial and other resources have
been identified to support the contract, and must continue to validate that
sufficient resources exist on their bureau's annual Statement of Assurance to
the Secretary.
b. The strategy to administer contracts in contingency
operation areas and critical environments will be a joint assessment by the
regional bureau, bureaus with operational responsibility, acquisitions (A/OPE/AQM), and A/OPE. The regional bureau has
coordinating leadership.
14 FAM 244.1-2 Training
(CT:LOG-212; 05-11-2016)
a. A/OPE defines training and experience requirements
for CORs. Bureaus with operational responsibility must define any specialized
training or experience requirements to ensure effective contract administration
oversight, such as requirements for subject-matter expertise. For example, a
bureau managing a food and fuel supply contract may decide to require fuel
testing plus food safety experience and training for CORs monitoring the
contract. This training would supplement training in COR duties and knowledge
of FAR required by A/OPE.
b. Bureaus should consider acquiring oversight training
and/or oversight support from other agencies with specialized experience such
as DoD's Defense Contract Management Agency, Defense Logistics Agency, or other
agencies via interagency acquisition agreements in accordance with Department
procedures.
c. Previous contingency operations were supported by
contractors using imported third-country nationals. Contingency conditions may
increase the risk of Trafficking in Persons (TIP) violations. Contracting
officers and CORs should review TIP monitoring guidance and create appropriate
mitigation and oversight strategies.
d. Existing COR training covers normal invoice
processing. Complex programs in contingency environments may need to develop
program specific invoice review and processing guidance due to the creation of
financial offices or processes to support the contingency or the need to
coordinate payments with other agencies.
14 FAM 244.1-3 Deployment and
Operations
(CT:LOG-212; 05-11-2016)
a. Contractors are required to provide their own life
support unless otherwise authorized in their contracts. Contracting officers
will not provide life-support authorization without express, written approval
of the management counselor at the host post.
b. If authorized by the host post, contractor life
support authorization must be specified in the contract and implemented through
letters of authorization (LOAs) issued through SPOT for the individual
contractor employees.
c. SPOT is the official record for tracking contractor
deployment in contingency operations as well as the means for documenting prior
authorization of life support.
d. Outgoing CORs shall provide either a written or oral
debriefing of contractor performance and outstanding issues prior to departure
to their successors.
e. Contractors are responsible for ensuring their
employees complete all required training before deployment to the contingency
area. A/LM/CECAS is responsible for identifying any required standard training
for a specific contingency or critical environment that all contractors must
acquire.
14 FAM 244.2 Contractor Performance
Evaluation
(CT:LOG-244; 03-27-2018)
a. Program evaluation is performed in accordance with
guidance contained in 18 FAM 300,
Department of State Evaluation Policy. Contracts must be written with
performance metric monitoring as a goal to assist in determining whether
contingency contracts should be continued, revised, or terminated.
b. Funding bureaus or program offices managing
contracts in support of a contingency or critical environment that exceed $25
million, or have been identified as high impact such as contracts for security,
must conduct regular and comprehensive program reviews at least quarterly.
Program reviews are chaired by the government program manager and should
include the contracting officer and COR, if different than the program manager.
Agendas, minutes, and tracking of action items must be performed.
c. Contracts must be promptly evaluated in the
government-wide Contractor Performance Assessment Reporting System (CPARS) in
accordance with standard Department procedures.
14 FAM 244.3 Risk Assessments and
Risk-Mitigation Plans for Use of Contractors in Support of Contingency
Operations
14 FAM 244.3-1 Planning
(CT:LOG-212; 05-11-2016)
a. As required by Section 846 (b) of Public Law
112-239, and subject to paragraphs g and h of this section, not later than 6
months after the commencement or designation of a contingency operation outside
the United States that includes or is expected to include combat operations,
the Department, through A/LM/CECAS, must perform a comprehensive risk assessment
and, as required, develop risk-mitigation plans for operational risks
associated with contractor performance of critical functions (defined at 14 FAM 244.5)
in support of Department of State operations.
b. A/LM/CECAS is responsible for leading the Department-wide
coordination to develop these risk assessments and resulting risk-mitigation
plans.
c. The relevant regional bureau and Diplomatic
Security (DS) are responsible for working with A/LM/CECAS to develop risk
assessments and for clearing the risk assessments.
d. The funding bureau or program office and DS are
responsible for working with A/LM/CECAS to develop contractor risk mitigation
plans and for clearing the risk mitigation plans.
e. The relevant regional bureaus may elect to
participate in developing risk mitigation plans for contracts operating in
their region. Regional bureaus are also responsible for clearing risk
mitigation plans if they participate in developing them.
f. The Under Secretary for Management approves risk
assessments and contractor risk mitigation plans.
g. Exceptions: Except as
provided in paragraph e of this section, a risk assessment and risk mitigation
plans are not required under paragraph a for an overseas contingency operation,
if:
(1) The operation is not expected to continue for more
than 1 year; and
(2) The total amount of Department obligations for
contracts in support of the operation is not expected to exceed $250 million.
Once obligation thresholds are met, A/LM/CECAS will initiate the
Department-wide process for the comprehensive risk assessment and
risk-mitigation plan.
h. Termination of exceptions:
Notwithstanding paragraph d of this section, the Department must
perform a risk assessment and develop a risk mitigation plan for an overseas
contingency operation for which a risk assessment and risk mitigation plan has
not been performed previously, not later than 60 days after the date on which:
(1) The operation has continued for more than 1 year;
or
(2) The total amount of obligations for contracts in
support of the operation for the covered agency exceeds $250 million.
14 FAM 244.3-2 Risk Assessments
(CT:LOG-212; 05-11-2016)
a. Section 846 (c) of Public Law 112-239, requires the
comprehensive risk assessment must consider, at a minimum, risks relating to
the following:
(1) The goals and objectives of the operation (such as
risks from contractor behavior or performance that may injure innocent members
of the local population or offend their sensibilities);
(2) The continuity of the operation (such as risks
from contractors refusing to perform or being unable to perform when there may
be no timely replacements available);
(3) The safety of military and civilian personnel of
the United States if the presence or performance of contractor personnel
creates unsafe conditions or invites attack;
(4) The safety of contractor personnel employed by the
Department of State;
(5) The managerial control of the Department over the
operation (such as risks from over-reliance on contractors to monitor other
contractors or inadequate means for U.S. Government personnel to monitor
contractor performance);
(6) The critical organic or core capabilities of the
Department, including critical knowledge or institutional memory of key
operations areas and subject-matter expertise; and
(7) The ability of the U.S. Government to control
costs, avoid organizational or personal conflicts of interest, and minimize
waste, fraud, and abuse.
b. To meet this requirement, A/LM/CECAS will perform an
annual risk assessment for each country where DoD is involved in a contingency
operation. The risk assessment will be performed in coordination with DS and
the appropriate regional bureau.
c. Diplomatic Security and the regional bureau clear
the risk assessment.
d. The Under Secretary for Management approves the risk
assessment.
14 FAM 244.3-3 Risk Mitigation
Plans
(CT:LOG-212; 05-11-2016)
a. Section 846 (d) of Public Law 112-239, requires a
risk-mitigation plan for each high-risk area identified in the comprehensive
risk assessment (see 14 FAM 244.3-2).
The risk-mitigation plan must include, at a minimum, the following:
(1) Specific actions to mitigate or reduce such risk,
including the development of alternative capabilities to reduce reliance on
contractor performance of critical functions (defined at 14 FAM 244.5);
(2) Measurable milestones for the implementation of
planned risk mitigation or risk-reduction measures;
(3) A process for monitoring, measuring, and
documenting progress in mitigating or reducing risk; and
(4) A continuing process for identifying and
addressing new and changed risks arising in the course of the operation,
including the periodic reassessment of risks and the development of appropriate
risk mitigation or reduction plans for any new or changed high-risk area
identified.
b. Risk mitigations apply to contractors who are
nonlocal resident, whether U.S. citizens or third-country nationals, except
personal services contractors.
c. The prime contractor is responsible for ensuring
that its sub-contractors comply with the mitigations.
d. Risk mitigation plans will address the areas of high
risk identified in the risk assessment, but will not necessarily mirror the
approaches used for U.S. Government direct hires.
e. FAR 52.225-19 is
required in all contracts operating within a DoD-designated contingency
operation area, and risk mitigation plans to not obviate the requirement for
this clause's inclusion in the contract.
f. A/LM/CECAS will lead the Department-wide
coordination to develop such risk mitigation plans with DS, AQM, the funding
bureau or program office (see 14 FAM 244.3-3,
subparagraph a(1)). The development of alternative capabilities, as
applicable, to reduce reliance on contractor performance of critical functions
is the responsibility of the funding bureaus or program offices (see 14 FAM 244.3-3,
subparagraph a(1)). The funding bureaus or program offices are responsible for
establishing measurable milestones to ensure the implementation of the risk
mitigation plan, and to establish a process for monitoring, measuring, and
documenting the progress in mitigating or reducing risk (see 14 FAM 244.3-3,
subparagraphs a(2) and a(3)). A/LM/CECAS will continually identify and address
new and changed risks arising in the course of the operation, including the
periodic reassessment of risks and the development of appropriate risk
mitigation or reduction plans for any new or changed high-risk area identified
(see 14 FAM
244.3-3, subparagraph a(4)).
g. Diplomatic Security and the funding bureaus or
program offices clear risk-mitigation plans. Regional bureaus are also
responsible for clearing risk-mitigation plans, if they participate in
developing them. The Under Secretary for Management approves the final
risk-mitigation plans, which are subject to the Under Secretary for
Management's or chief of mission's decisions for enhanced or additional
mitigation factors at any time.
14 FAM 244.4 Risk Assessments and
Risk-Mitigation Plans for Use of Contractors in Support of Critical
Environments
14 FAM 244.4-1 Planning
(CT:LOG-212; 05-11-2016)
Per 14 FAM 241.3,
paragraph d, A/LM/CECAS is responsible for leading Department-wide coordination
to develop risk assessments and risk mitigation plans for contractor support in
countries designated as critical environments.
14 FAM 244.4-2 Critical
Environment Risk Assessments
(CT:LOG-212; 05-11-2016)
a. Per 14 FAM 241.2,
paragraph d, A/LM/CECAS is responsible for developing, on an annual basis, the Critical
Environments List:
(1) To develop the recommended Critical Environments
List, A/LM/CECAS and DS review the most current High-Threat, High-Risk (HTHR)
list and the Security Environments Threat List (SETL). Countries are placed on
the Critical Environments List based on the threat of terrorism and political
violence being critical or high, with at least one critical rating in either of
the two categories;
(2) The Critical Environment List is approved annually
by the Under Secretary for Management; and
(3) Should security circumstances in a country
decline, the Under Secretary for Management may direct that the country be
added to the Critical Environments List at any time.
b. The criteria set forth in Section 846(c) of Public
Law 112-239, will be considered in the formation of these risk assessments,
such as the consideration of risks associated with the following:
(1) The goals and objectives of the operation, such as
risks from contractor behavior or performance that may injure innocent members
of the local population or offend their sensibilities;
(2) The continuity of the operation, such as risks
from contractors refusing to perform or being unable to perform when there may
be no timely replacements available;
(3) The safety of military and civilian personnel of
the United States if the presence or performance of contractor personnel
creates unsafe conditions or invites attack;
(4) The safety of contractor personnel employed by the
Department of State;
(5) The managerial control of the Department over the
operation, such as risks from over-reliance on contractors to monitor other
contractors or inadequate means for U.S. Government personnel to monitor
contractor performance;
(6) The critical organic or core capabilities of the
Department, including critical knowledge or institutional memory of key
operations areas and subject-matter expertise; and
(7) The ability of the U.S. Government to control
costs, avoid organizational or personal conflicts of interest, and minimize
waste, fraud, and abuse.
c. To meet this requirement, A/LM/CECAS will perform
an annual risk assessment for each country on the Critical Environments List.
The risk assessment will be performed in coordination with DS and the
appropriate regional bureau.
d. Diplomatic Security and the regional bureau clear
the risk assessment.
14 FAM 244.4-3 Critical
Environment Risk-Mitigation Plans
(CT:LOG-212; 05-11-2016)
a. At the time CECAS submits a risk assessment to the
Under Secretary for Management for approval, the Under Secretary will determine
whether the Department will:
(1) Coordinate and develop risk-mitigation plans for
contracts with operations in the country, as outlined in 14 FAM 244.3-3;
or
(2) Include the security awareness clause in subject
contracts, requiring the contractor to both develop and implement a
comprehensive security program which includes an assessment of risks, as
outlined in 14
FAM 246.
b. If under 14 FAM 244.4-3,
subparagraph a(1), the Under Secretary for Management determines that
risk-mitigation plans are required for contractor support in a critical
environment, the process will be the same as for DoD-designated contingency
operations (see 14 FAM 244.3-3).
The criteria set forth in Section 846(d) of Public Law 112-239, will be
considered in the formation of these risk-mitigation plans, and will include
such considerations as:
(1) For each high-risk area identified in the
comprehensive risk assessment:
(a) Specific actions to mitigate or reduce such risk,
including the development of alternative capabilities to reduce reliance on
contractor performance of critical functions;
(b) Measurable milestones for the implementation of
planned risk mitigation or risk-reduction measures; and
(c) A process for monitoring, measuring, and documenting
progress in mitigating or reducing risk; and
(2) A continuing process for identifying and
addressing new and changed risks arising in the course of the operation,
including the periodic reassessment of risks and the development of appropriate
risk-mitigation or reduction plans for any new or changed high-risk area
identified.
c. Risk mitigations apply to contractors who are
nonlocal resident, whether U.S. citizens or third-country nationals, except
personal services contractors.
d. The prime contractor is responsible for ensuring that
its subcontractors comply with the mitigations.
e. Risk mitigation plans will address the areas of high
risk identified in the risk assessment, but will not necessarily mirror the
approaches used for U.S. Government direct-hires.
f. FAR 52.225-19 is
required in all contracts operating within a critical environment, and
risk-mitigation plans to not eliminate the requirement for this clause's
inclusion in the contract.
g. A/LM/CECAS will lead the Department-wide
coordination to develop such risk-mitigation plans with DS, AQM, the funding
bureau or program office (see 14 FAM 244.3-3,
subparagraph a(1)). The development of alternative capabilities, as
applicable, to reduce reliance on contractor performance of critical functions
is the responsibility of the funding bureaus or program offices (see 14 FAM 244.3-3,
subparagraph a(1)). The funding bureaus or program offices are responsible for
establishing measurable milestones to ensure the implementation of the
risk-mitigation plan, and to establish a process for monitoring, measuring, and
documenting the progress in mitigating or reducing risk(see 14 FAM 244.3-3,
subparagraphs a(2) and a(3)). A/LM/CECAS will continually identify and address
new and changed risks arising in the course of the operation, including the
periodic reassessment of risks and the development of appropriate
risk-mitigation or reduction plans for any new or changed high-risk area
identified(see 14
FAM 244.3-3, subparagraph a(4)).
h. Diplomatic Security and the funding bureaus or
program offices clear risk-mitigation plans. Regional bureaus are also
responsible for clearing risk-mitigation plans if they participate in
developing them. The Under Secretary for Management approves the final
risk-mitigation plans, which are subject to the Under Secretary for
Management's or chief of mission's decisions for enhanced or additional
mitigation factors at any time.
14 FAM 244.5 Critical Functions
(CT:LOG-212; 05-11-2016)
Section 846 (e) of Public Law 112-239 requires critical
functions to include, at a minimum, the following:
(1) Private security functions, as that term is
defined in Section 864 (a)(6) of the National Defense Authorization Act for
Fiscal Year 2008 (10 U.S.C. 2302 note);
(2) Training and advising U.S. Government personnel,
including military and security personnel, of a host nation;
(3) Conducting intelligence or information operations;
(4) Any other functions that are closely associated
with inherently governmental functions, including the functions set forth in
the FAR 7.503(d); and
(5) Any other functions that are deemed critical to
the success of the operation.
14 FAM 244.6 Program Risk
Management
(CT:LOG-212; 05-11-2016)
a. In addition to the requirement for a risk assessment
on the use of contractor support required by 14 FAM 244.3-2 and 14 FAM 244.4-2,
individual bureaus will manage individual program risk using their established
procedures. All contracts exceeding $25 million in support of a contingency
operation must have an individual program risk assessment and program risk
planning.
b. Individual program risk assessment and planning
should include a contractor self-assessment of program risks and a mitigation
plan updated semi-annually.
c. Programs or contracts in support of contingency
operations exceeding $25 million must schedule at least quarterly program
reviews to determine that contractor performance is achieving objectives.
Metrics, in accordance with FAM program evaluation guidelines, should be used
to assess effectiveness. Program review frequency should be based on the
nature and complexity of the program. Contractor performance must be
documented in the government-wide contractor performance assessment system.
d. If a program or contract is determined to be at risk
of failure to achieve delivery or meet cost or performance objectives, the
finding must be presented to the bureau Assistant Secretary, A/LM Deputy
Assistant Secretary, CAO, and the Under Secretary for Management.
14 FAM 245 INTERAGENCY COORDINATION AND
TRANSITION PLANNING
(CT:LOG-212; 05-11-2016)
a. A/LM/CECAS is responsible for, and has the lead on,
interagency coordination pertaining to Section 846 of Public Law 112-239,
particularly with regard to risk-assessment and risk-mitigation planning.
b. All interagency acquisition agreements are documented
in accordance with Department procedures.
c. Copies of agreements and supporting documentation
are maintained within an environment shared by the agencies supporting the
contingency operation so that the history of transactions is maintained even
though personnel may rapidly rotate through a contingency environment. A
special Transition Coordinating Working Group manages transition planning
activities. The Deputy Assistant Secretary for Logistics Management chairs the
Working Group.
d. Transition planning for acquisition support must
consider identifying the need for continuing life support such as housing,
food, medical and transport, among other services.
14 FAM 246 CONTRACTOR SECURITY PLAN
REQUIREMENT
(CT:LOG-212; 05-11-2016)
a. In the event the Under Secretary for Management
determines a specific risk mitigation plan is not required per 14 FAM 244.4-3,
subparagraph a(2), the contracting office is responsible for including this
solicitation provision and resulting contract clause in all service contracts
using nonlocal U.S. citizens or third-country nationals requiring performance
of 45 continuous days or more within a 12-month period in a designated critical
environment:
CONTRACTOR SECURITY PLAN
REQUIREMENT, April 2016
Work under this contract will be performed in a
country that may experience security contingencies due to civil unrest,
terrorism, political violence, and crime. Prime contractors and other service
providers must develop and implement a comprehensive security program to protect
their employees, and the employees from each sub-contract, regardless of their
country of origin from such contingencies; and must develop a means to monitor,
assess, and communicate changes in the security environment to their employees
throughout the region. Contractors should seek professional advice in
developing a security program tailored to the region where the work will be
performed, or where an activity is undertaken to facilitate that work, to
ensure the security program adequately mitigates the risks specific to that
locale.
The security program shall, at a minimum, address
physical, personal, and procedural security for employee housing/residences,
transportation from housing to and from work venues, an action plan for
medical/security-related emergencies, and the contractor's security policy for
employees for off-duty recreational activities and those areas of the host
nation that are deemed off limits due to the security environment. The
comprehensive security program shall be documented in writing and submitted to
the contracting officer within 30 days after award. The contractor will
provide plan updates as necessary.
Adherence to this clause is considered integral to
the performance of this contract, and failure to submit a plan consistent with
these requirements or implement the plan may provide adequate ground for
termination of the contract for default.
This clause is to be read in agreement with FAR
52.225-19, which is incorporated into this contract, and nothing in this clause
shall be read or construed as limiting the responsibilities of the contractor
or its subcontractors as set out in to that clause.
b. The program management office will determine if the
comprehensive security plan proposed by the contractor required by the security
awareness clause is acceptable.
c. The inclusion of this clause in the contract does
not eliminate the requirement to include the clause at FAR 52.225-19, if
applicable.
14 FAM 247 THROUGH 249 UNASSIGNED