USFK Regulation 700-19 dated 08-28-12.pdf

Headquarters United States Forces Korea United States Forces Korea Regulation 700-19 Unit #15237

APO AP 96205-5237

28 August 2012

Procurement

THE INVITED CONTRACTOR AND TECHNICAL REPRESENTATIVE PROGRAM

*This regulation supersedes USFK Regulation 700-19, dated 4 June 2007.

FOR THE COMMANDING GENERAL:

BRIAN T. BISHOP

Major General, USAF Deputy Chief of Staff

OFFICIAL:

GARRIE BARNES

Chief, Publications and Records Management

Summary. This regulation establishes policies and procedures for the designation of corporations and individuals as Invited Contractors (ICs) and Technical Representatives (TRs) who work in support of the United States (U.S.) Armed Forces or other armed forces in the Republic of Korea (ROK) under the Unified Command receiving logistics support from the U.S. armed forces under the U.S.-ROK Status of Forces Agreement (SOFA) and applicable U.S. regulations. ICs and TRs will be managed in accordance with (IAW) the SOFA and applicable U.S. regulations.

Summary of Change.

o Defined ―ordinarily residence of U.S.‖ more clearly and identified documents that could be used to support the SOFA requirement of being ―ordinarily residence of U.S.‖ in chapter 2-2 e(2)(a), page 8, Definition of Ordinarily Resident of U.S., page 66 and Definition of Supporting Documentation, page 67.

o Added new requirement: Responsible Officer’s (RO’s) must be appointed as Trusted Agents for the Contractor Verification System, when practical in chapter 3-4 j on page 23.

o Added new requirement: contract SOFA designation can be for multiple years however, IC SOFA designation is based on each funded contract. Contract SOFA designation must cover the period of IC contract performance in the ROK in chapter 2-5c on page 11.

o Added new requirement: PMO and Ration Control checks shall encompass all visits to the ROK on page 13, chapter 2-5 e(3)(c).

o Deleted the thirty day SOFA extension which allowed contractors SOFA coverage beyond the expiration date of the contract’s period of performance.

o Added new requirement: RO’s are required to have RO training within 90 days of appointment. Added link to USFK/FKAQ website for Invited Contractor Program/RO Training in chapter 3-3 a(1) on page 17.

o Added new requirement: RO’s must submit an Applicant Questionnaire on the IC when submitting for SOFA designation on page 8, chapter 2-2 e(2)(a).

o Added clarification to the type of contract documents required for extending contract SOFA designation beyond original designation period on page 11, chapter 2-5 c.

o Other changes have been made in the last couple of years but the track changes have been accepted as the changes were made.

o Added clarification to TR designation in chapter 1-4d on page 6.

o Added IC/TR must immediately notify RO in incidents involving injury or death of a ROK LN.

Also, added RO must immediately notify appropriate USFK agency such as SJA, PMO, FKAQ, etc when IC/TR notifies them about incidents involving injury or death of a ROK LN in chapter 2-5 e(2) on page 12, in chapter 3-4 a(2)(g) on page 19, and page 24 chapter 3-5j.

o Added ICP/RO training slide location in chapter 3-4 a(2)(d) on page 19.

Applicability.

a. This regulation applies to--

(1) All contracting offices that solicit, award, or administer contracts involving work to be performed in the ROK by U.S. contractors or third country nationals for the support of the U.S.

Armed Forces.

(2) Contractor’s Sponsoring Agencies (SA) and Responsible Officers (RO).

(3) Contractors, their employees and dependents (including those in a TDY/TAD status) that meet IC or TR criteria IAW the U.S.-ROK SOFA and this regulation.

b. This regulation does not apply to Defense Security Assistance Agency, Department of State, Foreign Military Sales (FMS) contractors, or their SAs. These contractors are not in the ROK solely for the benefit of the U.S. Armed Forces. Therefore, they are--

(1) Not normally eligible for status under the U.S.-ROK SOFA.

(2) Not normally eligible to be United States Forces Korea (USFK) ICs or TRs.

c. This regulation is applicable during all phases of contract operations.

Supplementation. Supplementation of this regulation and issuance of command and local forms by subordinate commands is prohibited unless prior approval is obtained from HQ USFK, Assistant Chief of Staff, Acquisition Management (FKAQ), Unit #15289, APO AP 96205-5237.

Internal Control Provisions. This regulation does not contain management control checklists.

Forms. USFK forms are available at http://www.usfk.mil/USFK/default.aspx

Records Management. Records created as a result of processes prescribed by this regulation must be identified, maintained, and disposed of according to AR 25-400-2. Record titles and descriptions are available on the Army Records Information System website at https://www.arims.army.mil.

Suggested Improvements. The proponent of this regulation is HQ, USFK Assistant Chief of Staff (ACS), Acquisition Management (FKAQ). Users are invited to send comments and suggested improvements on DA Form 2028 (Recommended Changes to Publications and Blank Forms) to the HQ, USFK (FKAQ), Unit #15289, APO AP 96205-5237.

Distribution. Electronic Media Only (EMO).

http://www.usfk.mil/USFK/default.aspx https://www.arims.army.mil/

CONTENTS

Chapter 1 Introduction, page 1

1-1. Purpose 1-2. References 1-3. Explanation of Abbreviations and Terms 1-4. Overview 1-5. Policy 1-6. Invited Contractor (IC)/Technical Representative (TR) Designation Order of Precedence

Chapter 2 Invited Contractors (ICs), Technical Representatives (TRs) and The U.S. – ROK Status of Forces Agreement (SOFA), page 3

2-1. General 2-2. Invited Contractor Designation 2-3. Technical Representative Designation 2-4. SOFA Benefits for ICs and TRs 2-5. Processing Requests for SOFA IC Designation 2-6. Termination and Withdrawal of SOFA Status 2-7. Non-US Citizen Employees of Designated United States ICs 2-8. Requests for SOFA Designation for Third-Country Contractor Firms 2-9. Subcontractors 2-10. U.S.-Korean Joint Ventures

Chapter 3 Duties and Responsibilities, page 10

3-1. U.S. Government Contracting Offices 3-2. Contracting Officers 3-3. United States Forces Korea (USFK) Sponsoring Agency (SA) 3-4. Responsible Officer (RO) 3-5. Invited Contractor/Technical Representative 3-6. USFK Assistant Chief of Staff, Acquisition Management (FKAQ)

Chapter 4 Logistics Support, page 18

4-1. Policy 4-2. Government Provided Logistics Support, Corporate 4-3. Government Provided Logistics Support, Employee 4-4. Academic Institution/Transition Services Personnel 4-5. Identification (ID) Cards

Appendixes, page 22

A. References B. Contract Clauses/Requirements C. USFK Form 700-19A-R-E (Invited Contractor and Technical Representative Personnel Data

Report)

CONTENTS (Cont’)

D. Sample Memorandums E. FKAQ Points of Contact

Table List

Table 4-1. Full Logistics Support Privileges, page 20 Table 4-2. Individual Logistics Support Privileges, page 20 Table B-1. SOFA Contract Clause, page 25 Table B-2. Contingency Conditions Clause, page 30

Figure List

Figure D-1. Sample Request for SOFA Designation Memorandum, page 38

Figure D-2. Sample SOFA Post Award Coordination Memorandum, page 40 Figure D-3. Sample RO Appointment Memorandum, page 41 Figure D-4. Sample SOFA Letter of Accreditation, page 42 Figure D-5. Sample Form to Request Provost Marshal Background Check, page 43 Figure D-6. Sample Form to Request Ration Control Check, page 44 Figure D-7. Sample Memorandum to DODDS Verifying Invited Contractor/Technical

Representative Status, page 45 Figure D-8. Sample Memorandum of Request to Deny Installation Access to U.S. Citizen Invited

Contractor/Technical Representative Employee, page 46 Figure D-9. Sample Memorandum of Request to Deny Third-Country National Invited

Contractor/Technical Representative Employee Installation Access, page 47 Figure D-10. Sample RO Annual Employment Verification Report, page 48 Figure D-11. Application for Dependency Determination US Invited Contractor/Technical

Representative, page 49 Figure D-12. Applicant Questionnaire Memo, page 52

Glossary, page 55

USFK REG 700-19, 28 August 2012

Chapter 1 Introduction

1-1. Purpose This regulation establishes policies and procedures for the designation of corporations and individuals as Invited Contractors (ICs) and Technical Representatives (TRs) who work in support of the United States (U.S.) Armed Forces or other armed forces in the Republic of Korea (ROK) under the Unified Command receiving logistics support from the U.S. Armed Forces under the U.S.-ROK Status of Forces Agreement (SOFA) and applicable U.S. regulations. ICs and TRs will be managed in accordance with (IAW) the SOFA and applicable U.S. regulations. This regulation applies in armistice, contingency and war.

1-2. References Required and related publications are listed in appendix A.

1-3. Explanation of Abbreviations and Terms Abbreviations and terms used in this regulation are explained in the glossary.

1-4. Overview

a. The U.S. – ROK SOFA Article XV, ICs, defines an IC as ―a person(s), including (a) corporations organized under the laws of the United States, (b) their employees who are ordinarily resident in the U.S., and (c) the dependents of the foregoing, present in the ROK solely for the purpose of executing contracts with the U.S. for the benefit of the U.S. Armed Forces or other armed forces in the ROK.‖

b. In order for a U.S. contractor (defined as a corporation organized under the laws of the United States) to legally perform contracts for the U.S. Armed Forces in Korea, it must either obtain formal approval from the U.S. Representative to the U.S.-Republic of Korea (U.S.-ROK) Joint Committee under the U.S.-ROK SOFA as set out in this regulation (i.e., designation as an IC or TR), or obtain requisite business licenses directly from the ROK government and conduct business IAW all applicable ROK laws, including rules and policies regarding labor and taxation. Any non- Korean business entity that performs under U.S. contract for the benefit of the U.S. Armed Forces or other armed forces in the ROK and fails to obtain IC/TR designation or applicable ROK government business licenses is in violation of the U.S.-ROK SOFA and Korean Law.

Note: Only IC/TR designated contractors can qualify for USFK logistics support.

c. The U.S. Representative to the SOFA Joint Committee designates ICs and TRs IAW the provisions of SOFA Articles XV and I, respectively. IC designations shall be made upon consultation with the ROK Government and both IC designations and TR determinations shall be restricted to cases where performance by a Korean firm is not practical due to:

(1) Security considerations,

(2) The technical qualifications of the contractor involved,

(3) The unavailability of materials or services required by U.S. standards, or

(4) Limitations of U.S. law.

d. The U.S. Representative to the SOFA Joint Committee determines TR status IAW the provisions of the Commerce Subcommittee recommendation concerning TRs approved by the Joint Committee, at the 14th SOFA Joint Committee meeting on September 14, 1967, and as amended at 171st Joint Committee meeting on June 26, 1992, and further amended at the 180th Joint Committee on April 2, 2001. Once someone has been determined to be a TR, that individual qualifies as a member of the civilian component under the SOFA.

1-5. Policy

a. The U.S. Government (including USFK) has the obligation to comply with the provisions of the U.S.–ROK SOFA, an international agreement as described in the Federal Acquisition Regulation (FAR), Part 25.8 (Other International Agreements and Coordination), including provisions regarding use of contractors in support of U.S. Armed Forces in Korea. Department of Defense FAR (DFAR), Part 225.74 (Defense Contractors Outside the United States). Specifically, DFAR 225.7401 and PGI 225.7401 (Contracts Requiring Performance or Delivery in a Foreign Country). Accordingly, the U.S. and USFK may provide SOFA status and support only to contractors meeting the IC or TR status criteria IAW the U.S.-ROK SOFA and this regulation.

b. USFK policy mandates the use of local contractors in the ROK whenever possible for procurement. U.S. Government Contracting Officers shall request approval to use U.S. contractors when at least one of the four conditions listed in paragraph 1-4c is met. In the event no Korean or U.S. contractors are available, ROK consent may be sought to use a Third-Country National (TCN) contractor IAW the U.S.-ROK SOFA and this regulation.

c. Contracts that include a requirement for performance in the ROK shall include a specific clause that addresses requirements and obligations of the U.S-ROK SOFA (―SOFA clause‖).

Contracts that include a requirement for performance in other than peacetime or armistice (e.g., contingency, wartime, etc.) shall contain appropriate clauses and/or Statement of Work (SOW) requirements consistent with Department of Defense (DOD) and USFK policy. Failure to include appropriate contract requirements is a basis for denying SOFA status. Sample SOFA and contingency clauses are provided in appendix B. While these sample clauses are not prescriptive, substantially similar clauses must be incorporated into contracts before SOFA designation will be granted. Additional information on contingency contract requirements may be found in the publications listed in appendix A.

d. The Assistant Chief of Staff (ACoS), Acquisition Management, USFK (FKAQ) is charged with the management and oversight of the IC and TR program.

1-6. Invited Contractor (IC)/Technical Representative (TR) Designation Order of Precedence

a. The following hierarchy of source documents governs the requirements for the designation of ICs/TRs for SOFA status:

(1) First: The U.S.-ROK SOFA.

(2) Second: U.S. Law/Federal Acquisition Regulation.

(3) Third: DOD and USFK Regulations.

b. Any conflict between this or any other U.S. regulation and a contract’s terms and conditions will be resolved by reference to the pertinent source documents in the order listed in Chapter 1, paragraph 1-6a, above.

Chapter 2 Invited Contractors (ICs), Technical Representatives (TRs) and The U.S. – ROK Status of Forces Agreement (SOFA)

2-1. General U.S. contractors selected to execute contracts in support of the U.S. Armed Forces in Korea shall only enter Korea to perform contractual obligations IAW the terms and conditions of their respective contract(s). The requirement to include SOFA and (if warranted) contingency clauses cannot be over-emphasized. The USFK ACofS, Acquisition Management (FKAQ), as the U.S.

Chairman of the Commerce Subcommittee under the U.S.-ROK SOFA Joint Committee, is charged with the management and oversight of the overall IC and TR program for the U.S. Representative to the SOFA Joint Committee. Additionally, FKAQ is delegated authority to designate, suspend and revoke individual employees and their dependents status as ICs and TRs.

2-2. Invited Contractor Designation

a. Designation of the specific contract(s) to be performed in Korea is the first step in the SOFA designation process for ICs. Contracting Officers initiate the designation process by submitting a request to FKAQ IAW Appendix D, Figure (Fig) D-1. Designation will only take place following a consultation with the ROK and the resolution of any issues arising from that consultation.

b. Once the contract is designated, the IC, in coordination with the USFK Sponsoring Agency (SA), will obtain individual SOFA status for all contract employees and dependents supporting contract performance in the ROK.

c. SOFA designation affords the IC and its employees certain legal benefits under the U.S.- ROK SOFA. SOFA status is a precondition for USFK logistics support for the contractor and its employees and their dependents and is subject to availability/space available. Granting logistics support to ICs is a unilateral right of USFK and not a contractual benefit. A contract or subcontract shall not require logistics support privileges to be extended to IC as a condition for performance in Korea.

d. U.S. contractors may be designated as ICs under Article XV of the SOFA only if--

(1) The Contracting Officer justifies in writing to FKAQ that ROK contractors cannot satisfy the requirement due to one of the conditions listed in Chapter 1, paragraph 1-4c.

(2) The contractor is organized under the laws of the U.S.

(3) The contractor is in Korea solely for the purpose of executing contracts with the U.S. for the benefit of the U.S. Armed Forces.

(4) The contractor is not engaged in any business or activity in the ROK other than pertaining to the U.S. Armed Forces or other armed forces in the ROK under the Unified Command receiving logistics support from the U.S. Armed Forces.

e. The employees may be designated as ICs if--

(1) Their company and contract has been properly designated IAW the U.S.-ROK SOFA;

(2) They are ordinarily resident in the U.S.: FKAQ will determine ordinary resident status.

(a) The determination of where an individual is ordinarily resident is made by consideration of a number of factors. In order to make that determination, each employee requesting designation as an IC shall submit with their 700-19 a completed copy of the Applicant Questionnaire (Appendix D, Figure D-12). Figure D-12 requires each applicant to provide certain support documents to include passport pages, home mortgage/apartment lease documents, property tax documents, various household bills, and bank statements. FKAQ may also request any additional information, such as tax returns, credit card statements, or any other documentation FKAQ deems necessary to determine eligibility for IC status. With the exception of the passport, the requested documents must show at a minimum name, address, date, and usage.

(b) See glossary for the definition of the term ―ordinarily resident in the United States‖

(c) Failure to provide requested information, providing incomplete information, or providing inaccurate information is a basis to deny an employee IC status.

(3) They are present in the ROK solely to perform under the terms and conditions of their SOFA designated contract and are not engaged in other business in Korea.

f. For contractors, SOFA status shall be automatically withdrawn upon completion or termination of the contract/employment. Furthermore, SOFA status will be withdrawn if companies or their employees and/or dependents engage in any other business activities not pertaining to USFK, engage in illegal practices, or violate USFK policy.

g. SOFA status and logistics support shall not be provided to salespersons, marketing representatives, consultants, and others not directly performing work to satisfy a contract requirement in support of U.S. Armed Forces in Korea.

2-3. Technical Representative Designation

a. TR status is very limited under the definitions agreed to by the U.S.-ROK SOFA Joint Committee. The Contracting Officer or SA will consult with FKAQ prior to requesting this determination. The U.S. Representative to the SOFA Joint Committee determines the eligibility of TRs to be designated as members of the civilian component under Article I of the SOFA.

Contracting Officers or the SA commander/chief initiates the process by submitting a request to FKAQ IAW Appendix D, figure D-1.

b. SOFA designation as a member of the civilian component affords the TR certain legal benefits under the U.S.-ROK SOFA, which is more expansive than those for ICs. SOFA status is a precondition for USFK logistics support for TRs and their dependents. Granting logistics support to TRs is a unilateral right of USFK. A contract shall not require logistics support privileges to be extended to TR as a condition for performance in Korea.

c. If the US Government does not have privity of contract with potential TR designated personnel, before the TR designation can be extended, the subject personnel must execute a memorandum of agreement to abide by the terms of the ROK-US SOFA.

2-4. SOFA Benefits for ICs and TRs SOFA ―status‖ refers to those categories of companies and personnel covered by the provisions of the U.S.-ROK SOFA. SOFA status provides certain legal benefits for designated personnel and also establishes an obligation for them to comply with the terms of the SOFA. SOFA benefits comprise the following:

a. Entry into the ROK IAW the provisions of SOFA Article VIII.

b. Access and movement, as provided for in SOFA Article X, paragraph 2.

c. Exemption from customs duties and other such charges provided for in SOFA Article IX, paragraph 3, for members of the U.S. Armed Forces, the civilian component, and their dependents.

d. The use of U.S. military postal facilities provided for in SOFA Article XX.

e. The use of utilities and services IAW those priorities, conditions, rates or tariffs accorded the U.S. Armed Forces by SOFA Article VI.

f. Exemption from the laws and regulations of the ROK with respect to terms and conditions of employment, and licensing and registration of businesses and corporations. However, U.S.

contractors directly hiring Korean national employees must comply with USFK Regulation (Reg) 690-1 and other applicable USFK regulations concerning the employment of local nationals.

g. Exemption from ROK taxation on the holding, use, transfer by death, or transfer to persons or agencies entitled to tax exemption under the SOFA, of movable property, tangible or intangible, the presence of which in the ROK is due solely to the temporary presence of these persons in the ROK, provided that such exemption shall not apply to property held for the purpose of investment or the conduct of other business in the ROK or to any intangible property registered in the ROK.

h. Exemption from ROK income and corporate taxes on any income derived under a contract with the U.S. for the benefit of USFK in connection with the construction, maintenance or operation of any of the facilities or areas covered by the SOFA.

i. The protections of SOFA Article XXII, Criminal Jurisdiction, paragraphs 5, 7(b), and 9, and the related Agreed Minutes and Understandings on Implementation, although the authorities of the ROK have the right to exercise jurisdiction over U.S. contractors, their employees and their dependents for offenses committed in the ROK and punishable by ROK law.

2-5. Processing Requests for SOFA IC Designation

a. ROK SOFA designation is a 2 STEP process in USFK. STEP 1 is to obtain SOFA designation on the contract. STEP 2 is to obtain SOFA designation on the IC working on the contract. Both STEPs can be processed simultaneously; however, STEP 2 cannot be completed until all documents for STEP 1 has been submitted. Failure to provide requested information, providing incomplete information, or providing inaccurate information is a basis to deny SOFA designation on contract and/or IC/TR.

b. STEP 1 - SOFA designation on the contract.

(1) The contracting office and SA shall coordinate solicitation requirements prior to initiating a request for SOFA designation. The Contracting Officer and the SA shall evaluate all requirements for U.S. Armed Forces in Korea for performance by local firms before soliciting contractors in the U.S. The Contracting Officer will sign a written memorandum citing the applicable condition(s) of SOFA Article XV (see Chapter 1, paragraph 1-4c of this regulation) that prevents the use of local firms. Include this memorandum in the request package (see Appendix D, Fig D-1) to FKAQ for SOFA designation for the contract not later than 45 days prior to the date work is scheduled to commence in the ROK. If citing technical qualifications or unavailability of materials or services in the ROK as exceptions, the contracting officer must insert in the

"Justification section" of the SOFA request memo verifying no Korean firm can perform the work.

With the designation request memorandum (Fig D-1), include a copy of the signature page of the applicable contract/modification that incorporates the ―SOFA‖ clause (and contingency clause, if required), Delivery Date/Period of Performance page, and a copy of the Statement of Work (SOW)/Performance Work Statement (PWS) to FKAQ. FKAQ will determine if the request meets the conditions of SOFA Article XV and USFK policy before processing the request IAW the U.S.- ROK SOFA and established Joint Committee procedures for consultation and designation. Failure to provide all requested information will delay processing.

(2) If a request for SOFA designation is submitted in the contract pre-award stage, the Contracting Officer shall sign and forward a Post-Award Coordination Memorandum to FKAQ upon contract award. SOFA designation cannot be completed until notification of the contract award is received by FKAQ. (See Appendix D, Fig D-2).

(3) Each U.S. contract shall have a separate SOFA designation. Any action that results in a new basic contract number or change in company name (e.g. novation) shall be designated separately. Contract actions (modifications), delivery/task orders, do not require separate contract SOFA designation if their period of performance was covered by the original SOFA contract designation period.

c. STEP 2 - SOFA designation on the IC. Invited Contractors will only receive SOFA designation for the funded period of performance in the ROK. SOFA designation of IC/TR terminates when contract funded period of performance ends or IC/TR separates from contract due to termination, retirement, relocation or any other form of disassociation with the SOFA designated contract. The contract maybe SOFA designated (STEP 1) for multiple years; however, IC's can only be SOFA designated for the funded period. IC's operating under CRA may obtain SOFA designation for the base/option period of that fiscal year. Contracting Officers must submit copies of modifications that exercise and fund option periods to FKAQ once they are approved and signed. The following documents are acceptable to prove contract being funded: 1. Signed and released contract by the contracting officer (includes exercise of option year with subject to availability of funds clause added). 2. Notice-to-Proceed from the contracting officer. 3. Fully funded Purchase Request (PR&C) identifying the accounting line and the requirement plus the DRAFT contract. For #3, a blank or unapproved PR&C will not be accepted. Multi-year contracts may receive multi-year SOFA designation. However, evidence of multi-year funding must be included in the SOFA designation request. Failure to provide all requested information will delay processing.

d. Processing a Request for TR Designation as a Member of the Civilian Component.

(1) The determination that someone is a TR is limited by agreement of the U.S.-ROK SOFA Joint Committee to individuals who serve in three basic capacities--

(a) Special individual instructors or technical advisors: Such individuals might be dispatched to USFK to provide technical training, evaluation, installation or maintenance and inspection of complex military equipment or systems. Such training is often involved during the initial fielding of new equipment and systems and is provided by the equipment or system manufacturer. These individual trainers typically do not fall under any direct contractual obligation with the U.S. Government. See paragraph (para) 2-2 and 2-3 for more information.

(b) Individual medical and dental service personnel hired by USFK directly under a ―personal services contract‖ in lieu of direct government employment, which by the express terms or administration of the contract, makes the individual contractor appear, in effect, as an employee of the U.S. Government. Such personal services contractors fill voids in military and civilian component manning by providing personal medical and dental services to USFK personnel.

(c) Special individual vendor representatives provided by major U.S. manufacturers to ensure commissaries and exchanges in the ROK are properly stocked with American-style products and to act as the interface between U.S. commissaries and exchanges and U.S. suppliers of U.S. products. Such individuals are not under any contractual obligation to the U.S. Defense Commissary Agency or USFK.

(2) The Contracting Officer or the head of the SA shall submit a request for determination of TR status to FKAQ citing the applicable condition above, including an explanation of how the proposed TR meets the conditions of the citation (see Appendix D, Fig D-1) not later than 45 days prior to the date work is scheduled to commence in the ROK. With the designation request memorandum (Fig D-1), include a copy of the signature page of the applicable contract/modification that incorporates the ―SOFA‖ clause, period of performance page, and a copy of the Performance Work Statement (PWS)/ Statement of Work (SOW) to FKAQ. Failure to provide all requested information will delay processing. FKAQ will determine if the request meets the conditions previously outlined before processing the request IAW the U.S.-ROK SOFA and established Joint Committee procedures.

e. Processing Individual Contractor Employees and Dependents for SOFA Status (ICs and TRs).

(1) IAW USFK 190-7, paragraph 2-4a(3) IC status will supersede other non-SOFA personnel categories.

(2) Concurrent with the request for SOFA designation, the SA will appoint a RO/Alternate RO for the contract and submit an RO/Alternate RO Appointment Memorandum to FKAQ (see Appendix D, Fig D-3). The RO/Alternate RO will be the USFK focal point for verifying SOFA status entitlements and coordinating any logistic support for contractor employees and their authorized dependents. Approved USFK Form 700-19 will only be returned to the RO/Alternate RO listed on the appointment memo. In extenuating circumstances, the USFK Form 700-19 can be forwarded to the SA. IC/TR must immediately report any incidents involving injury or death of a ROK LN by IC/TR to the RO. The RO must immediately report any incidents involving injury or death of a ROK LN by IC/TR to appropriate USFK agency such as SJA, PMO, FKAQ, etc.

(3) SOFA status and logistical support authorization shall be verified for all individual employees and authorized dependents. The RO shall send a Letter of Accreditation to FKAQ listing all contract employees and dependents to be designated and their subject to availability USFK provided logistical support (see Appendix D, Fig D-4). FKAQ shall require contractor personnel to demonstrate their residence and citizenship by presenting their passport for review.

Additionally, the RO, with assistance from the contractor, will prepare a USFK Form 700-19A-R-E (Invited Contractor and Technical Representative Personnel Data Report), (see Appendix C). The Letter of Accreditation and USFK Form(s) 700-19A-R-E shall be transmitted to FKAQ within 10 workdays of the arrival of any IC employees/dependents in Korea. Incomplete or late receipt of this information will delay individual employees/dependents SOFA designation and receipt of USFK provided logistical support. The following forms and all supporting documentation will be submitted to FKAQ for review;

(a) The USFK Form 700-19A-R-E is necessary to apply for base access media (Identification Card (ID)), SOFA status, and to receive any authorized, available logistics support.

(b) Contractor personnel are required to complete a USFK Form 700-19B-R-E, Application for Dependency Determination, US IC/TR (see Appendix D, Fig D-11) when claiming people other than spouse and children under 21 years of age (i.e., parents, parent-in-laws, stepchild, adopted child, or child ward) and provide source documentation as required (i.e. birth certificates, divorce/custody decrees, marriage certificates, etc). Dependents identified as Designated Country Personnel (DCP) shall provide a copy of their DCP approval in accordance with USFK Reg 190-7 when submitting the USFK Form 700-19A-R-E. Dependency determinations and DCP approval may require detailed analysis by USFK personnel and may delay USFK Form 700-19A-R-E approval.

(c) A current (90 days old or less) Provost Marshal Office (PMO) check and Ration Control check. If the contractor has a Ration Control or PMO violations the RO must submit a counseling action with these forms. PMO and Ration Control checks shall encompass all visits to the ROK.

(4) Article XV of the SOFA prohibits ICs and their dependents from engaging in business activities in the ROK. This provision is not applicable to TRs who obtain their SOFA status under Article I of the SOFA, vice Article XV. Ordinary employment by IC and IC dependents on SOFA designated contracts with USFK are not considered a business activity; ordinary employment by IC or IC dependents on the ROK economy are considered a business activity. The use of SOFA benefits for conducting business in the ROK is strictly prohibited. Any FKAQ determined violation may result in immediate termination of SOFA status of that individual and forfeiture of ID cards, ration control plates and all rights and privileges previously granted. If the sponsor loses his/her status, the status of any dependents shall also be terminated.

(5) The SA (via the RO) will determine the available logistics support to be provided to contractor employees and eligible dependents IAW the SOFA and USFK regulations. The employee will use the signed USFK Form 700-19A-R-E in conjunction with other applicable documents to receive the approved logistics support. The SA shall ensure all IC/TR employees comply with applicable provisions of USFK Regulation 350-2 Theater Specific Required Training for all Arriving Personnel and Units Assigned to, Rotating to, or in Temporary Duty Status to USFK and submit the training certificate to FKAQ. The training website is:

http://www.usfk.mil/usfk/theaterrequiredtraining.aspx.

(6) The RO is responsible for all supporting documents for contractor employees and their authorized dependents while in Korea including processing requirements for logistics support. See paragraph 3-4 for details on all RO duties.

2-6. Termination and Withdrawal of SOFA Status IC designation or TR status may be withdrawn by USFK under the following circumstances:

a. Such shall be withdrawn for Invited Contractors/Technical Representatives business entities, upon contract expiration date (as noted on the USFK Form 700-19A-R-E) or termination of employment.

b. Such may be withdrawn upon a determination the contractor or a contractor’s IC/IC’s dependents engaged in business activities in the ROK other than those designated by the U.S.

Representative to the SOFA Joint Committee; or

c. Such may be withdrawn upon a determination the contractor or a contractor’s employee/employee’s dependents engaged in practices in violation of USFK regulations and policies.

http://www.usfk.mil/usfk/theaterrequiredtraining.aspx

d. USFK/FKAQ is responsible for processing all IC/TR terminations and maintains the unilateral right to terminate IC/TR SOFA status.

2-7. Non-US Citizen Employees of Designated United States ICs

a. ICs. Non-US citizen employees (U.S. green card holders) of U.S.-ICs who ordinarily reside in the U.S. may qualify for SOFA status. Qualified employees may receive SOFA status and logistics support. Non-U.S. citizen employees of U.S. ICs who are not ordinarily residents in the U.S. do not qualify for SOFA status.

b. TRs. Non-US citizen TRs who are not ordinarily resident of Korea, possessing certain skills not available from U.S. or Korean sources may be designated TRs solely for the purpose of employment by U.S. Armed Forces in Korea. In addition to explaining how the employee meets the definition of TR, the Contracting Officer or head of the SA shall demonstrate that the skills required for contract performance are not available from ROK or U.S. sources. FKAQ approved Non-US citizen TRs receive the same SOFA benefits and logistics support as U.S. citizen TRs.

2-8. Requests for SOFA Designation for Third-Country Contractor Firms

a. Third-country contractor firms may be designated ICs under the SOFA. IAW Article XV of the SOFA, the Contracting Officer’s request shall demonstrate a significant advantage for ROK- U.S. mutual defense by utilizing a third-country contractor in lieu of a ROK or U.S. Firm. IC requests for third-country contractors must be submitted to the ROK government for consideration prior to designation.

b. IAW Article XV of the SOFA, the U.S. Armed Forces may bring into the ROK, with SOFA status but without SOFA benefits, third-country contractor employees possessing special skills not available from the Korean labor force. Request to FKAQ shall clearly demonstrate the special skills required for contract performance are not available in the Korean labor force. Individual logistics support from U.S. Armed Forces is not available for third-country employees of third-country corporations. Such employees are eligible only for a USFK facilities/post pass with no logistics support privileges.

2-9. Subcontractors Subcontractors and their employees/dependents are covered under the umbrella of the prime contractor for purposes of SOFA status for any work performed in Korea supporting the prime contractor’s contractual obligation. Subcontractor corporations performing in Korea shall be identified in the prime contractor’s request for IC designation. RO's shall ensure USFK Forms 700- 19A-R-E and letters of accreditation reference the appropriate prime contractor and subcontractor(s) name and shall list all subcontractor employees and dependents. Subcontractors must meet the same criteria as prime contractors set forth in this regulation to receive SOFA benefits and USFK logistics support. Contracting officers will coordinate changes in subcontractors with FKAQ.

2-10. U.S.-Korean Joint Ventures Only U.S.-Korean Joint Ventures established for the sole purpose of performing work for U.S.

Armed Forces in Korea may qualify for SOFA status. Only the U.S. partner and its qualifying employees in the Joint Venture will be IC designated, eligible for SOFA benefits and USFK logistics support

Chapter 3 Duties and Responsibilities

3-1. U.S. Government Contracting Offices The provisions of the U.S.-ROK SOFA supersede domestic law for both the ROK and the U.S.

(See 17 UST 1677, TIAS 6127, or 674 UNTS 163.) All U.S. contracting offices awarding and administering contracts to be performed in the ROK in support of U.S. Armed Forces shall conform to the provisions of the U.S.-ROK SOFA and this regulation. Before awarding any contract for work to be performed in the ROK for the benefit of the U.S. Armed Forces, the contracting office awarding the contract shall coordinate with FKAQ and the USFK SA IAW the FAR sub-Part 25.8 and DFAR 225.7401 and PGI 225.7401, and the requirements listed in this regulation. Failure to coordinate may result in a refusal to allow the contractor to enter the ROK with the proper SOFA visa, delays in contract performance, and/or no logistics support for the contractor, its employees and dependents. U.S. or Third Country (TC) contractors working in the ROK without proper designation; or in the case of TC contractors, without proper immigration status, are in direct violation of the U.S.-ROK SOFA and ROK law and are subject to prosecution by ROK authorities.

3-2. Contracting Officers

a. Pre-solicitation coordination with FKAQ.

(1) The Contracting Officer shall submit a request for SOFA designation memorandum to FKAQ upon identifying a contract requirement for performance in the ROK. Along with the designation request memorandum (Fig D-1), include a copy of the solicitation/amendment that incorporates the ―SOFA‖ clause, funding line, Delivery Date/Period of Performance date and a copy of the Statement of Work (SOW)/Performance Work Statement (PWS) to FKAQ. The request shall be submitted to FKAQ at least 45 days before the scheduled contract performance in the ROK. See Appendix D, Fig D-1 for a sample request memorandum. Direct questions concerning this procedure to FKAQ (see Appendix E for FKAQ contact information).

(2) The Contracting Officer shall appoint a SA in Korea to coordinate contractor logistics support requirements and ensure all IC/TR employees comply with applicable USFK regulations and policies, especially provisions of USFK Regulation 350-2 Theater Specific Required Training for all Arriving Personnel and Units Assigned to, Rotating to, or in Temporary Duty Status to USFK.

All IC/TR theater training requirements should be completed prior to or immediately after IC/TR employee arrival in Korea.

(3) The Contracting Officer shall ensure all SOFA related contract clauses, including applicable clauses in Appendix B (or similar clauses) of this regulation, are included in both the solicitation and the awarded contract or through contract modification if original contract has been executed.

(4) The Contracting Officer will provide an information copy of the pre-solicitation request for SOFA status to the USFK SA.

b. Logistics Support coordination. The Contracting Officer shall coordinate the applicability and availability of USFK provided logistics support (corporate and individual) for contractors with the USFK SA prior to contract award. The USFK SA must coordinate any USFK provided logistics support with all cognizant installation administration officials/offices. Logistics support is provided on a ―subject to availability/space available‖ basis. USFK shall not be contractually bound to provide logistics support to contractors or contractor personnel. Contingency and/or wartime requirements shall include logistics support coordination for applicable contract requirements.

c. Post-award coordination. The Contracting Officer shall provide the information shown in the sample Post-Award Coordination Memorandum (see Appendix D, Fig D-2) to FKAQ, at least 10 workdays prior to the contractor beginning performance in the ROK.

d. Contract clauses/requirements. Contracts that include a requirement for performance in the ROK, shall include a specific clause that addresses requirements and obligations of the U.S-ROK SOFA (―SOFA clause‖ see Appendix B, Table B-1). A Wartime Contingency Clause and/or contingency contract requirements substantially similar to those set out in Appendix B, Table B-2 shall be included in contracts requiring continued performance during wartime or contingency conditions. As part of the SOFA designation request memorandum, contracting officers must verify subject contracts contain such language.

e. Extensions of performance period or follow-on contracts. Contracting Officers shall notify and provide a copy the contract extension modification to FKAQ at least 30 calendar days prior to expiration of the current contract to ensure no break in SOFA status. A copy of the contract extension modification must be submitted to FKAQ prior to SOFA status extension. Contracting Officers shall submit a request for contract designation for follow-on contracts awarded under a different contract number. Contracting Officers can submit one of three documents to request extension of SOFA designation: modification to extend contract which includes subject to availability funds clause, contract Notice-to-Proceed signed by the contracting officer, or fully funded modification. Failure to provide modification or other contracting actions in a timely manner may result in the contract losing its SOFA designation and contractor employees losing their IC/TR SOFA status.

3-3. United States Forces Korea (USFK) Sponsoring Agency (SA)

a. General.

(1) The USFK SA is the DOD organization located in the ROK designated to ensure the IC or TR is provided with logistics support. In many cases, the SA is the Unit Commander and/or equivalent of the contract requiring activity. SA must ensure RO training is completed within 90 days of appointment as the RO. RO training slide can be found at http://www.usfk.mil/usfk/organization.fkaq.607. The Contracting Officer shall, when possible, designate the SA during the pre-solicitation phase of the contracting cycle.

(2) The SA provides, or as necessary, terminates authorized logistics support to the IC/TRs in consultation with FKAQ, monitors the conduct of contractor personnel, and immediately notifies FKAQ of all changes in status.

(3) The SA shall designate a DOD military member or DOD employee as the RO and Alternate RO to act on behalf of the SA. The SA must be in the supervisory chain of the RO being appointed. The RO shall be an E5 or above, if military, GS-07 or above if civilian. The RO is directly responsible for administering appropriate logistics support for SOFA contractors during contract performance in the ROK.

b. SA duties. When a USFK unit or agency is notified by a contracting office that it has been appointed as a SA, the SA will--

(1) Communicate directly with the contracting office and provide a POC to the Contracting Officer.

http://www.usfk.mil/usfk/organization.fkaq.607

(2) Validate the availability of logistics support (both corporate and individual) that is stipulated in the terms of the solicitation or contract.

(3) Provide the contracting office with information concerning security, access and training requirements pertaining to the area of contract performance.

(4) Coordinate any special contract requirements, particularly contingency requirements, if included in the contract.

(5) Ensure all IC/TR employees comply with applicable provisions of USFK regulations and policies, especially USFK Regulation 350-2 Theater Specific Required Training for all Arriving Personnel and Units Assigned to, Rotating to, or in Temporary Duty Status to USFK. All IC/TR theater training requirements should be completed prior to or immediately after IC/TR employee arrival in Korea.

(6) Notify FKAQ and the Contracting Officer in the event any contractor employee fails to comply with any contract contingency requirement (e.g., EEC physical, etc.).

(7) Appoint RO and an alternate RO in writing for each contract. Provide a copy of the RO Appointment Memorandum to FKAQ and appointee. See Appendix D, Fig D-3 for a sample RO Appointment Memorandum. Update RO appointments, as needed, to ensure duties are performed for the entire contract period of performance in Korea.

(8) Include non-emergency essential contractor employees and dependents and emergency essential contractor employees’ dependents in USFK’s Noncombatant Evacuation Operation (NEO) planning.

(9) Include contractor operations in agency contingency planning including life support and force protection IAW USFK policy. For instance, see Army FM 3-100.21 for additional planning considerations.

(10) Advise FKAQ of planned contractor wartime operating locations for each emergency-essential contractor employee.

3-4. Responsible Officer (RO)

a. General.

(1) The USFK RO or its Alternate is the DOD personnel located in the ROK designated to ensure the IC or TR is provided with logistics support. RO’s cannot be self-appointed. Duties include determining available logistics support and assisting the employees and eligible dependents in obtaining support. The RO and the SA are jointly responsible for all contractor logistics support documents and must ensure issued items (Government Furnished Property or ―GFP‖) are returned to the appropriate offices when no longer authorized. The RO should be geographically and functionally situated to enable direct personal contact with contractor employees. The RO may be the same person as the contracting officer's representative (COR) or contracting officer’s technical representative (COTR) but must be a Government employee (military or civilian). Multiple ROs may be appointed for the same contract depending on the number of contractor employees and the dispersal of geographic locations. The RO must take the RO training, provided by FKAQ, at the time of appointment (this is not the same as COR training). In addition, annual refresher RO training must be completed on the anniversary date of being appointed.

(2) RO functions include but are not limited to--

(a) Certification of SOFA status eligibility by reviewing all employee(s)/dependent(s) documents and submitting completed USFK Form 700-19A-R-E and supporting documentation to

FKAQ.

(b) Coordination with FKAQ and property custodian (if applicable) for previously approved logistics support and administer such support for the contractor and authorized individual employees and dependents.

(c) Preparation of Letters of Accreditation for contractor personnel. (See Appendix D, Fig. D-4 for a sample Letter of Accreditation.)

(d) RO training slide is located at: http://www.usfk.mil/usfk/organization.fkaq.607

(e) Ensuring contractor employees out-process properly, to include collecting all logistics support documents (CAC/ID cards, Ration Control Plates (RCP), SOFA vehicle license plates, etc.), and GFP and returning them to the appropriate offices. Indicate completion by closing out each contractor employee’s USFK Form 700-19A-R-E and returning the original to

FKAQ.

(f) Ensuring coordination, and where appropriate, initiation of administrative action in reported instances involving violations of SOFA status privileges or misconduct on the part of IC/TR personnel and their dependents.

(g) The RO must immediately report any incidents involving injury or death of a ROK LN by IC/TR to appropriate USFK agency such as SJA, PMO, FKAQ, etc.

b. USFK Form 700-19A-R-E (formerly, USFK Form 175-R).

(1) The RO will provide each contractor employee a typed USFK Form 700-19A-R-E.

Each completed form and supporting documentation must be submitted to FKAQ and approved prior to contractor employee performance in the Republic of Korea. Contractors shall assist the RO in completing the form.

(2) The USFK Form 700-19A-R-E is valid only for the funded period of performance of the contract as reported by the Contracting Officer during the designation process. Initial issue of logistics support documents (CAC/ID cards, RCPs, vehicle registration, etc.) and GFP must be completed within 30 calendar days of FKAQ's verification date.

(3) Prior to submitting the USFK Form 700-19A-R-E Packet to FKAQ, the RO shall--

(a) Ensure Parts I and II…