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DEFENSE BASE ACT/WAR HAZARDS COMPENSATON ACT SEMINAR
OFFICE OF THE UNDER SECRETARY OF DEFENSE
3000 DEFENSE PENTAGON WASHINGTON, DC 20301-3000
ACQUISITION, TECHNOLOGY and LOGISTICS
December 08, 2003
DPAP/P
MEMORANDUM FOR DIRECTORS OF THE DEFENSE AGENCIES
DEPUTY ASSISTANT SECRETARY OF THE ARMY
(POLICY AND PROCUREMENT), ASA(ALT)
DEPUTY ASSISTANT SECRETARY OF THE NAVY
(ACQUISITION MANAGEMENT),
ASN(RDA)
DEPUTY ASSISTANT SECRETARY OF THE AIR FORCE (CONTRACTING),
SAF/AQC
EXECUTIVE DIRECTOR, ACQUISITION, TECHNOLOGY
AND SUPPLY
DIRECTORATE (DLA)
DIRECTOR, ADMINISTRATION AND MANAGEMENT
SUBJECT: Inclusion of Defense Base Act Clause in DoD
Overseas Contracts
It has come to my attention that there may be some
inconsistency within the Department regarding the inclusion of the Workers'
Compensation Insurance (Defense Base Act) clause at FAR 52.228-3 in our
contracts to be performed outside of the United States. This clause, which is
prescribed by FAR 28.309(a), requires contractors to provide the workers'
compensation insurance mandated by the Defense Base Act (42 U.S.C. 165 1, et
seq.) for their overseas workers. FAR 28.305 provides additional implementing
guidance on this subject, including a definition of the key term ''public- work
contract.''
I want to emphasize that the Workers' Compensation
Insurance (Defense Base Act) clause at FAR 52.228-3 should be included
in all DoD service contracts to be performed (either entirely or in part)
outside of the United States, as well as in all supply contracts that also
require the performance of employee services overseas. This is consistent
with the very broad definition of ''public-work contract'' at FAR 28.305, which
would include virtually all DoD contracts for construction, repair, or any
other national defense related service performed overseas.
In addition, while FAR 28.309(b) prescribes inclusion of
the Workers' Compensation and War Hazard Insurance Overseas clause at
FAR 52.228-4 when the Secretary of Labor has waived the applicability of the
Defense Base Act, such waivers are granted only for foreign nationals hired
outside of the United States. Even when a waiver has been granted, both
of the clauses at FAR 52.228-3 and 52.228-4 should be included in DoD service
or supply contracts if any contract services will be performed overseas by
employees to whom the waiver does not apply, such as United States citizens or
foreign nationals hired within the United States.
Please ensure that this memorandum is widely disseminated
within your organizations. Questions may be directed to Mr. Christopher Werner of my staff at (703) 695-9764.
Deidre A. Lee
Director, Defense Procurement
and Acquisition Policy
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