B08 Contract Attachment 3-USFK-Instruction-Status of Forces Agreement (SOFA).pdf

UNITED STATES FORCES KOREA

INSTRUCTION

FKAQ USFKI 4901.01

DISTRIBUTION: A, B, C, D 20 April 2023

INVITED CONTRACTOR AND TECHNICAL REPRESENTATIVE PROGRAM

Reference(s): See Enclosure F

1. Purpose. This instruction establishes procedures and responsibilities for the designation, suspension, and revocation of corporations and individuals as Invited Contractors (ICs) and Technical Representatives (TRs) performing work in support of 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 in accordance with (IAW) applicable U.S. regulations and the U.S.-ROK Status of Forces Agreement (SOFA). This instruction applies in armistice, contingency and war.

2. Superseded/Canceled. This instruction supersedes USFK Regulation 700-19, dated 28 August 2012.

3. Applicability.

a. This instruction applies to:

(1) Contracting offices that solicit, award, or administer contracts involving work to be performed in the ROK by U.S. contractors or third-country nationals (TCN) in support of U.S. Armed Forces. This instruction is applicable during all phases of the procurement process.

(2) U.S. Government Sponsoring Agencies (SA) and Responsible Officers (RO).

(3) Contractors, its employees, and dependents that meet IC or TR criteria IAW the SOFA and this instruction. Hereinafter in this instruction, the corporation is referred to as “contractor” and the individual employee as “IC” or “TR”.

b. This instruction does not apply to Defense Security Cooperation Agency, Department of State, Foreign Military Sales contractors, or their SAs. Such contractors are not in the ROK solely for the benefit of the U.S. Armed Forces and are thus not eligible for IC/TR status under the SOFA.

USFKI 4901.01

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4. Policy.

a. USFK policy is to comply with applicable international agreements and all U.S.

laws, directives, policies, and procedures regarding the designation, suspension, and revocation of IC/TR status. USFK may provide SOFA status and support only to contractors, employees, and dependents meeting the criteria in the SOFA and this instruction.

b. The SOFA mandates the use of Korean contractors in the ROK whenever possible. A U.S. Government Contracting Officer (KO) shall request approval to use U.S. contractors when at least one of the four exceptions listed below are applicable.

(Note: If no Korean or U.S. contractors are available, ROK consent may be sought to use a third-country contractor IAW the SOFA and this instruction.)

(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.

c. U.S. contractors selected to execute contracts in support of U.S. Armed Forces in the ROK shall only enter the ROK to perform contractual obligations IAW the terms and conditions of their respective contract(s). U.S. contractor employees working in the ROK without proper SOFA designation, or in the case of TCN contractor employees without proper immigration status, are in direct violation of the SOFA and ROK law and are subject to prosecution by ROK authorities.

d. The U.S. Government KOs shall ensure compliance with international agreements when placing contracts with performance of contractors outside the U.S.

and include required instructions and clauses in the contract.

(1) The U.S. Government (including USFK) is obligated to comply with the provisions of the SOFA, an international agreement as described in Federal Acquisition Regulation (FAR) Subpart 25.8 – Other International Agreements and Coordination and Defense Federal Acquisition Regulation Supplement (DFARS) Subpart 225.8 – Other International Agreements and Coordination.

(2) Additionally, U.S. Government KOs shall ensure compliance with DFARS Section 225.370 – Contracts requiring performance or delivery in a foreign country.

Refer to DFARS Procedures, Guidance, and Information (PGI) 225.370 for more information.

(3) Failure to properly plan and coordinate IAW FAR Subpart 25.8, DFARS Subpart 25.8, DFARS Section 225.370, and DFARS PGI 225.370 may result in denial of SOFA designation or delays in contract performance.

e. The following hierarchy of source documents governs the requirements for the designation of IC/TR status. Any conflict will be resolved by referencing these source documents in the order of precedence listed below:

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

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

(3) Third: Department of Defense and USFK Instructions.

5. Definitions. See Glossary

6. IC/TR Program Overview.

a. The U.S. Representative to the SOFA Joint Committee designates ICs and TRs IAW the provisions of SOFA Articles XV and I, respectively. The Office of Acquisition Management, USFK (FKAQ) is charged with the management and oversight of the USFK IC/TR program.

b. In order for a U.S. contractor (defined as a corporation organized under U.S.

law), to legally perform contracts for the U.S. Armed Forces in Korea, it must either:

(1) Obtain formal approval from the U.S. Representative to the SOFA Joint Committee as set out in this instruction (i.e., obtain designation as an IC or TR), or

(2) Obtain requisite business licenses directly from the ROK government and conduct business IAW all applicable ROK laws, including those regarding labor and taxation.

c. A non-Korean business entity performing under a U.S. contract for the benefit of U.S. Armed Forces that fails to obtain IC/TR designation or applicable ROK business licenses thereby violates the SOFA and Korean Law. Additionally, only a designated IC/TR can qualify for USFK logistical support.

d. Invited Contractor. IC designations shall be made upon consultation with the ROK Government. SOFA Article XV – Invited Contractors defines an IC as “persons, including (a) corporations organized under the laws of the United States, (b) their employees who are ordinarily resident in the United States, and (c) the dependents of the foregoing, present in the Republic of Korea solely for the purpose of executing contracts with the United States for the benefit of the United States armed forces or other armed forces in the Republic of Korea.”

e. Technical Representative. The U.S. Representative to the SOFA Joint Committee determines TR status IAW the provisions of the Commerce Subcommittee recommendation concerning TRs approved at the 14th SOFA Joint Committee meeting on September 14, 1967, as amended at the 171st and 180th Joint Committee meetings on June 26, 1992 and April 2, 2001, respectively. Designation as a TR qualifies an employee as a member of the civilian component as defined in SOFA Article I – Definitions as “civilian persons of United States nationality who are in the employ of, serving with, or accompanying the United States armed forces in the Republic of Korea”.

7. Responsibilities.

a. The Office of the SOFA Secretariat, USFK:

(1) Provides SOFA implementation guidance, policy advice, analysis, and critical international relations assessments.

(2) Plans, organizes, executes Joint Committee and Special Joint Committee meetings while also directly supporting subcommittee/working group meetings in the understanding and implementation of SOFA provisions.

b. The Office of Acquisition Management, USFK (FKAQ):

(1) Manages the USFK Invited Contractor and Technical Representative Program.

(a) Provides information and assistance on the implementation of the policies and procedures described in this instruction to all USFK commands, contracting officers, and requiring/sponsoring activities.

(b) Coordinates with the Office of the SOFA Secretariat, USFK and Office of the Judge Advocate, USFK (FKJA) to establish policy and guidance which implements the provision of the SOFA as it pertains to ICs and TRs.

(2) Maintains a central database of all active ICs/TRs and their qualified dependents.

(3) Advises on policy and procedure applicable to the designation, suspension, and revocation of IC/TR status.

(4) Serves as co-chair of the Commerce Subcommittee of the SOFA Joint Committee with Director of America Trade Division, Ministry of Trade, Industry and Energy.

(a) Represents USFK with respect to Invited Contractor and Technical representative notifications and coordination with ROK Government, via the Ministry of Trade Industry and Energy.

(b) Consults, give advice and recommendations on matters referred by the Joint Committee concerning Article XV (except Criminal Jurisdiction and Vehicle

Licensing Provisions) and Article XVI of the SOFA and other matters as deemed expedient and proper by the Joint Committee (2nd PWG, 19 Jan 67, p. 22 & 30).

c. U.S. Government Contracting Offices and KOs:

(1) Determines the existence of and ensure compliance with international agreements when awarding contracts with performance of contractors outside the U.S., to include conducting acquisition planning and coordination with appropriate agencies.

(2) Complies with the procedures in Enclosure B.

d. Sponsoring Agency (SA) and Responsible Officer (RO):

(1) Coordinates any special contract requirements with the contracting office, particularly SOFA and contingency requirements, and provides information concerning security, access, and training requirements pertaining to contract performance.

(2) Manages assigned IC/TRs and validates the availability of logistics support (corporation and individual) stipulated in the contract.

(3) Complies with the procedures in Enclosure B.

8. Procedures. See Enclosure B.

9. Vision. To establish requirements and responsibilities for protecting military resources from adverse weather conditions. This instruction outlines the roles and responsibilities of weather units to provide METOC support to United States Forces

10. Records Management. In accordance with the CJCSM 5760.01A Volume II, Joint Staff and Combatant Commands Records Management Manual-Disposition Schedule.

11. Releasability. This instruction is approved for public release, distribution is unlimited.

DOD components other federal agencies, Copies of this instruction may be obtained through the internet from the USFK home page https://www.usfk.mil/Resources/Publications/ or at https://armyeitaas.sharepoint-mil.us/sites/USFK-RM/document library/Forms/Default.aspx.

12. Effective Date. This instruction is effective upon receipt.

0. OWENS

Colonel, .S. Army Acting Chief of Staff

Enclosures:

A – IC/TR SOFA Designation Overview B – Procedures C – SOFA Benefits and Logistics Support D – Required Contract Notices E – Sample and Templates F – References GL – Glossary i

TABLE OF CONTENTS

THE INVITED CONTRACTOR (IC) AND TECHNICAL REPRESENTATIVE (TR) PROGRAM

1. Purpose

2. Applicability

3. Policy

4. IC/TR Program Overview

5. Responsibilities

ENCLOSURE A: IC/TR SOFA DESIGNATION OVERVIEW

1. SOFA Designation General Overview ......................................................................... A-1

2. IC Designation ............................................................................................................. A-1

3. TR Designation ........................................................................................................... A-2

4. Termination and Withdrawal of SOFA Status .............................................................. A-3

5. SOFA Designation for Non-U.S. Citizen Employee ..................................................... A-3

6. SOFA Designation for Third-Country Contractors ........................................................ A-4

7. SOFA Designation for Subcontractors ......................................................................... A-4

8. SOFA Designation for U.S.-Korean Joint Ventures ..................................................... A-4

ENCLOSURE B: PROCEDURES

1. Step 1 – SOFA Designation of the Contract ................................................................ B-1

a. Contracting Officer ............................................................................................... B-1

b. Sponsoring Agency .............................................................................................. B-3

2. Step 2 – SOFA Designation of the Individual Contractor Employee ............................. B-3

a. Responsible Officer .............................................................................................. B-4

b. SOFA-Designated Contractor and Contractor Employee ...................................... B-5

3. Changes to SOFA Designation ................................................................................... B-6

4. Reporting of SOFA Violations or Contractor Misconducts ........................................... B-7

APPENDIX A TO ENCLOSURE B: SOFA Designation Request Process ........................ B-A-1

ENCLOSURE C: SOFA BENEFITS AND LOGISTICS SUPPORT

1. SOFA Benefits ............................................................................................................ C-1

2. Logistics Support ......................................................................................................... C-1

3. Table C-1 – Full Logistics Support Privileges .............................................................. C-5

4. Table C-2 – Individual Logistics Support Privileges ..................................................... C-6

ENCLOSURE D: REQUIRED CONTRACT NOTICES ..................................................... D-1

ENCLOSURE E: SAMPLES AND TEMPLATES .............................................................. E-1

ENCLOSURE F: REFERENCES ..................................................................................... F-1

GLOSSARY ...................................................................................................................... GL-1 ii

(INTENTIONALLY BLANK)

Enclosure A

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ENCLOSURE A

INVITED CONTRACTOR AND TECHNICAL REPRESENTATIVE SOFA

DESIGNATION OVERVIEW

1. SOFA Designation General Overview

a. FKAQ is charged with the management and oversight of the overall IC/TR program for the U.S. Representative to the SOFA Joint Committee.

(1) IC designations of contractors (corporation) shall be made upon consultation with the ROK Government.

(2) FKAQ is delegated authority to designate, suspend, and revoke IC or TR status of individual employees and their qualified dependents.

(3) Both IC and TR designations shall be restricted to cases when performance by a Korean contractor is not practical.

b. SOFA benefits and logistics support. See Enclosure C.

(1) ICs/TRs shall only enter the ROK to perform contractual obligations in support of the U.S. Armed Forces in Korea IAW the terms and conditions of their respective contract(s). SOFA designation affords the contractor and its employees potential benefits under the SOFA. SOFA status is a precondition for providing USFK logistics support for the contractor, its employees, and dependents.

(2) Logistics support is provided on a space available basis. Granting logistics support is a unilateral right of USFK and not a contractual benefit. A contract or subcontract shall not require logistics support privileges to be extended as a condition for performance in the ROK.

c. SOFA designation is a two-step process.

(1) Step 1: Obtain SOFA designation of the contract or task order.

(2) Step 2: Obtain SOFA designation for individual contractor employees.

2. Invited Contractor (IC) Designation

a. U.S. contractors may be designated in Step 1 as ICs under Article XV of the

SOFA only if:

(1) The Contracting Officer (KO) justifies in writing to FKAQ that Korean contractors cannot satisfy the requirement due to one of the four exceptions listed in paragraph 4, Policy, of the USFK IC/TR Program (USFK 4901.01).

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

(3) The contractor is 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 under the Unified Command.

(4) The contractor is not engaged in business activities in the ROK other than those pertaining to the U.S. Armed Forces or other armed forces in the ROK under the Unified Command.

b. The contractor employees may be designated in Step 2 as ICs if:

(1) The employees’ company and relevant contract have been properly designated IAW the SOFA and this instruction.

(2) The employees are ordinarily resident in the U.S.

(3) The employees 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 activities in the ROK.

c. 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 violation determined by FKAQ may result in immediate SOFA status revocation of the individual and forfeiture of ID cards and all rights and privileges previously granted.

3. Technical Representative (TR) Designation.

a. TR status is very limited under the definitions agreed to by the SOFA Joint Committee. The KO 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 as defined under Article I of the SOFA to individuals who serve in the following three basic capacities:

(1) Special individual instructors or technical advisors 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 by the manufacturer. Individual trainers typically do not fall under any direct contractual obligation with the U.S. Government.

(2) Individual medical and dental service personnel hired by USFK under a

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A-3 personal services contract in lieu of direct government employment. The express terms or administration of the contract makes the contractor appear to be an employee of the U.S. Government. Personal services contractors fill voids in military and civilian component manning by providing medical and dental services to USFK personnel.

(3) 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 acting as the interface between 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.

b. SOFA designation as a member of the civilian component affords the TR legal benefits under the SOFA that are more expansive than those for ICs.

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

d. TRs shall not be ordinary resident of the ROK. TRs transitioning to IC status are required to establish ordinary U.S. residency at the time of submission of a Certification of Ordinary U.S. Residence memorandum.

4. Termination and Withdrawal of SOFA Status

a. IC or TR statuses shall be withdrawn by USFK upon termination of the contract or employment. Otherwise, IC or TR statuses expire upon the contract completion date or employee estimated departure date (as noted on USFK Form 700-19A-R-E).

b. IC or TR statuses may be withdrawn, for cause, by USFK:

(1) Upon a determination that the designated IC or dependents engaged in business activities in the ROK other than those designated by the U.S. Representative to the SOFA Joint Committee; or

(2) Upon a determination that the designated IC/TR or dependents engaged in practices in violation of ROK or U.S. laws, or USFK instructions and policies.

(3) If the sponsor (IC or TR) loses the SOFA status, the status of any dependents shall also be terminated.

(4) Once withdrawn for cause, FKAQ will not consider another period of SOFA approval for the contractor employee for a minimum of two years.

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

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5. Requests for SOFA Designation for Non-U.S. Citizen Employees of U.S. Contractors.

a. ICs: Non-U.S. citizen employees (i.e., U.S. green card holders) of SOFA designated contracts, who ordinarily reside in the U.S., may qualify for SOFA status.

Qualified employees may receive SOFA status and logistics support.

b. TRs: Non-U.S. citizen TRs who are not ordinarily resident of Korea and possess skills not available from U.S. or Korean sources may be designated as TRs solely for the purpose of employment by the U.S. Armed Forces in Korea. In addition to explaining the employee’s qualification as a TR, the KO or SA shall demonstrate that the skills required for contract performance are not available from ROK or U.S. sources.

Approved non-U.S. citizen TRs receive the same SOFA benefits and logistics support as U.S. TRs.

c. TCNs: IAW Article XV of the SOFA, the U.S. Armed Forces may bring into the ROK, with SOFA status but without SOFA benefits, TCN contractor employees possessing special skills not available from the U.S. or Korean labor force. Request to FKAQ shall demonstrate the special skills required for contract performance are not available in the U.S. or ROK labor force.

6. Requests for SOFA Designation for Third- Country Contractors.

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

b. Individual logistics support from U.S. Armed Forces is not available for TCN employees of third-country contractors. Such employees are eligible only for a USFK facilities/post pass with no logistics support privileges.

7. Requests for SOFA Designation for Subcontractors. Subcontractors, its employees and dependents fall under the prime contractor for purposes of SOFA status related to work performed in the ROK supporting the prime contractor’s contractual obligation and must be identified in the prime contractor’s request for SOFA designation. ROs shall ensure USFK Form 700-19A-R-E identifies the company for which the contractor employee is working. Subcontractors must meet the same criteria as prime contractors as set forth in this instruction to receive SOFA benefits and USFK logistics support. KOs will coordinate changes in subcontractors with FKAQ.

8. Requests for SOFA Designation for U.S.-Korean Joint Ventures. U.S.-Korean Joint Ventures established for the sole purpose of performing work for the U.S. Armed Forces in Korea may qualify for SOFA status. Only the U.S. partner and its qualifying employees in the Joint Venture may be IC designated and eligible for SOFA benefits and USFK logistics support.

Enclosure B

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ENCLOSURE B

PROCEDURES

General Considerations. The IC/TR SOFA designation is a two-step process. Failure to follow the procedures within this instruction or failure to provide complete and accurate information is a basis to deny contract or contractor employee SOFA designation.

Refer to Enclosure E for sample documents and templates.

1. Step 1 – SOFA designation of the contract.

a. Contracting Officer (KO) shall:

(1) Evaluate all U.S. Armed Forces in Korea requirements for feasible performance by Korean contractors before soliciting contractors in the U.S.

(2) Coordinate solicitation and subsequent contract award requirements to ensure compliance with the SOFA when awarding and administering contracts with performance of U.S. contractors in the ROK in support of U.S. Armed Forces. 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.). U.S. or third-country contractors working in the ROK without proper SOFA designation; or in the case of TCN contractor employees without proper immigration status, are in direct violation of the SOFA and ROK law and are subject to prosecution by ROK authorities.

(3) Include appropriate instructions and clauses in the contract. Failure to do so is a basis for denying SOFA designation of the contract.

(a) Contracts that include a requirement for performance in the ROK shall contain specific instructions addressing requirements and obligations of the IC/TR under the SOFA, hereinafter referred to as the “SOFA instruction.” Refer to Enclosure D for SOFA instruction language.

(b) Contracts that include a requirement for performance in the ROK in other than peacetime or armistice (e.g., contingency or wartime) shall contain DFARS 252.225-7040, Contractor Personnel Supporting U.S. Armed Forces Deployed Outside the United States (Oct 2015), hereinafter referred to as the “Contingency clause”.

(4) Appoint an USFK Sponsoring Agency (SA) in the ROK to coordinate the applicability and availability of USFK provided logistics support to the contractor, its employees, and dependents. The KO shall make every effort to designate the SA during the pre-solicitation phase of the contracting cycle. Failure to appoint the SA in a timely manner may delay Step 2 (SOFA designation of the individual contractor employee) processing times. The USFK SA must coordinate USFK provided logistics support with all cognizant installation administration officials, offices, and agencies.

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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.

(5) Sign a written SOFA Request Memo justifying the performance of non- Korean contractors in the ROK based on the applicable exceptions below:

(a) Security considerations,

(b) The technical qualifications of the contractor involved,

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

(d) Limitations of U.S. law.

(6) Submit a Step 1 request for SOFA designation of the contract with supporting documents, such as:

(a) Request for SOFA Designation memorandum signed by the KO.

(b) A copy of the contract or task order identifying the period of performance, SOFA instruction, and Contingency clause (as applicable). Indefinite-delivery (D-type) contract SOFA designation is requested and approved for individual Task Orders (TOs) or Delivery Orders (DOs). Exceptions will be coordinated with and determined by FKAQ.

(c) A copy of documents that describes the work, performance objectives, and standards that are expected of the contractor (e.g., Performance Work Statement (PWS), Statement of Work (SOW), Statement of Objectives (SOO), etc.).

(d) DD Form 254 – Department of Defense Contract Security Classification Specification (or a confirmation the contract does not require DD Form 254).

(e) Only wet or digital signature is acceptable on all documents. The KO’s name and official title shall be typed, stamped, or printed on the contract.

(f) Requests for contract SOFA designation should be submitted no later than 45 days prior to the date work is scheduled to commence in the ROK or may result in delays in contract performance.

(7) If a request for SOFA designation is submitted in the contract pre-award stage, the KO shall sign and submit a memorandum for record with the anticipated award information, such as solicitation and contract number, contractor name and address, period of performance, contract effective date, confirmation of the inclusion of SOFA clause and/or contingency clauses. However, SOFA designation cannot be completed until FKAQ receive the signed contract award.

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(8) SOFA designation on the contract may be granted for the duration of the performance period (base plus all option periods). The KO shall provide a copy of a contract modification exercising each option period.

(9) Each U.S. contract shall have a separate SOFA designation. KO shall submit a new Step 1 request for any action that results in a new basic contract number or change in company name (e.g., novation).

(10) Extensions of performance period. KO shall submit a new Step 1 request for all contract extensions, along with the contract modification and supporting documentation at least 30 calendar days prior to expiration of the current contract or immediately upon execution of the modification.

(11) Changes to subcontractors. KO shall submit a new Step 1 request to add, change, or remove subcontractors.

b. Sponsoring Agency (SA) will:

(1) Communicate directly with the contracting office and validate the availability of logistics support (corporation and individual) stipulated in the solicitation or contract.

The SA will provide the contracting office with information on security, access and training requirements pertaining to the area of contract performance.

(2) Coordinate special contract requirements, such as contingency requirements, if included in the contract.

(3) Notify the KO if a contractor employee fails to comply with any contractual requirements.

(4) Coordinate authorized logistics support, monitors the conduct of contractor personnel, and notifies FKAQ of all changes in status. When necessary, the SA terminates authorized logistics support to the IC/TRs in consultation with FKAQ.

(5) Appoint a Responsible Officer (RO) to act on behalf of the SA. Alternate RO appointments are recommended to ensure seamless coverage and rapid crisis response capabilities. The SA must be in the supervisory chain of an appointed RO.

An RO shall be an E5 or above, if military, GS-07/KGS-07 or above if civilian.

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

(7) Include contractor operations in agency contingency planning including life support and force protection IAW USFK policy.

c. FKAQ will review the request package to determine if the request meets the

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B-4 conditions of SOFA Article XV/I and USFK policy before processing the request IAW the Joint Committee’s established procedures for consultation and designation.

2. Step 2 – SOFA designation of individual contractor employee.

a. The maximum approval period that can be granted for contractor employee is either three years, the available period of performance on the contract, the required end date of contractor performance on the contract in the ROK, or the sponsor’s DEROS (if applicable), whichever is less.

b. The Contractor Employee shall assist the RO to complete USFK Form 700- 19A-R-E and provide required documentation. U.S. or third country contractors working in the ROK without proper SOFA designation (or, in the case of TCN contractor employee, without proper immigration status) are in direct violation of the SOFA and ROK law and are subject to prosecution by ROK authorities.

c. Responsible Officer (RO) shall:

(1) Attend training conducted by FKAQ within 90 days of appointment. The RO must be appointed by the SA. FKAQ reserves the right to vacate RO appointments when circumstances dictate (e.g., RO misconduct, unprofessional behavior, abuse, or non-cooperation).

(2) Coordinate closely with the KO or Contracting Officer’s Representative (COR) to ensure proper and timely processing of contractor employee SOFA designation prior to arrival in the ROK.

(3) Submit a Step 2 request for SOFA designation of individual contractor employee with supporting documents, such as:

(a) USFK Form 700-19A-R-E with Part I and II completed and signed.

(b) USFK Form 237-E, Request for Provost Marshall Record Check.

1. The RO shall request a record check from the Provost Marshall Office (PMO) within 90 days of a contractor’s New Arrival or Change of Data start date.

2. The RO is responsible to counsel contractors with PMO violations and to provide a copy of the counseling memo to FKAQ. Prior violations may result in the denial of SOFA approval or logistics support.

(c) Certification of Ordinary Residence memorandum. FKAQ reserves the right to request additional documentation as dictated by unique circumstances. Refer to Enclosure GL - Glossary and paragraph 3 of the Certification of Ordinary Residence memorandum for the definition of the term “ordinarily resident”.

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(d) Copy of passport data page

(e) RO Appointment memorandum.

(f) Dependents documentation: lawful spouse (passport and marriage certificate) and/or unmarried child under 21 years of age (passport and birth certificate).

(g) Unique dependents documentation: USFK Form 700-19B-R-E, Application for Dependency Determination and supporting documentation are required when claiming individuals other than lawful spouse and unmarried child under 21 years of age (See Glossary for authorized categories of dependents).

(h) Only wet or digital signature is acceptable on all documents. All signatures shall be dated within 90 days of the SOFA start date.

(4) The RO is the primary liaison between a contractor employee and FKAQ during Step 2 of the SOFA designation. FKAQ will only accept Step 2 requests and supporting documentation from trained and appointed ROs.

(5) The RO and the SA are responsible for all contractor logistics support documents and must ensure issued items, such as Government Furnished Property (GFP) are returned to the appropriate offices when no longer authorized. The RO is directly responsible for coordinating appropriate logistics support for SOFA contractors during contract performance in the ROK. The RO determines available logistics support and assists ICs/TRs and authorized dependents in obtaining support.

(6) USFK Form 700-19A-R-E serves as both the request and proof of approval, once processed, and is necessary to receive available logistics support as identified in Tables C-1 and C-2.

d. FKAQ will review the request package and determine if the request meets the conditions of SOFA Article XV/I and USFK policy before processing for individual employee designation. USFK Form 700-19A-R-E is valid from the SOFA start date indicated therein or the date of FKAQ signature, whichever is latest.

e. Upon approval, FKAQ stamps and signs USFK Form 700-19A-R-E. The RO shall:

(1) Retain the original and provide a copy to the contractor employee.

(2) Assist the contractor employee to obtain authorized and available logistics support as identified in Tables C-1 and C-2.

(3) Ensure all incoming contractor employee and dependents obtain the required ROK entry approval prior to travel. For example, starting 1 September 2021, the Korea Electronic Travel Authorization (K-ETA) is mandatory for all foreigners without

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B-6 a valid Visa to enter the ROK. Foreigners without either a K-ETA or a valid Visa will not be permitted to board a plane to the ROK. Check the U.S. Department of State – Bureau of Consular Affairs (https://travel.state.gov/content/travel/en/international-travel.html) for changes or updates to the ROK travel requirements.

(4) Ensure the contractor employee and dependents obtain the SOFA Stamp on their passport within 30 days upon arrival. Failure to timely obtain the proper Visa can result in monetary penalty from the ROK immigration office. Failure to obtain the proper Visa can result in loss of status.

(5) Ensure non-emergency essential contractor employee and/or authorized dependents are included in the unit's Non-Combatant Evacuation Operation (NEO).

(6) Ensure assigned ICs/TRs comply with the SOFA and applicable USFK instructions, and policies during contract performance in the ROK.

(7) Immediately notify FKAQ in the event of an incident involving contractor misconduct, SOFA violations, legal issues, injury or death.

f. SOFA-Designated Contractor and Contractor Employee shall:

(1) Assist the RO in completing USFK Form 700-19A-R-E and providing required supporting documentation.

(2) Assist the RO in processing and requesting logistics support for contractor employees and dependents as listed in Tables C-1 and C-2.

(3) Ensure all incoming contractor employee and dependents obtain the required ROK entry approval prior to travel and the SOFA Stamp using the approved USFK 700-19A-R-E within 30 days upon arrival.

(4) Comply with all USFK directives, instructions, policies, and procedures, to include when operating company and privately owned vehicles (POVs) on all U.S.

military installations in the ROK IAW USFK Regulation 190-1.

(5) Except for contractor air crews flying Air Mobility Command missions, all U.S. contractor employees performing work on U.S. Air Force classified contracts will report to the nearest Security Forces Information Security Section for the geographical area where the contract is to be performed in order to receive information on local security requirements.

(6) Notify the RO of changes to the employment condition or to information on the approved USFK Form 700-19A-R-E.

(7) Out-process from all support privileges listed in Table C-1 and C-2 and depart the ROK IAW the ROK immigration law.

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(8) Assist the RO in the annual verification of IC/TR employment status.

(9) Notify the RO immediately of any incidents involving injury or death of an IC/TR or caused by and IC/TR.

3. Changes to SOFA designation for individual contractor employee.

a. The RO is responsible for submitting changes of data for ICs/TRs.

b. Change in administrative data. The RO shall submit a new Step 2 request and supporting documents (using wet or digital signatures dated within 90 days of the start date), such as:

(1) USFK Form 700-19A-R-E.

(2) USFK Form 237-E.

(3) RO Appointment memorandum.

(4) Previously approved USFK Form 700-19A-R-E.

(5) Other documents as applicable to support the request for change of data.

c. Transfer of employment within the ROK. If a contractor employee changes employment from one contract to another or from one contractor to another, the RO shall:

(1) Close out the approved USFK Form 700-19A-R-E by completing Part IV and submitting to FKAQ immediately.

(2) Submit a new Step 2 request to FKAQ with the new employment information for the contractor employees remaining in the ROK.

(3) FKAQ is not able to process changes in employment status until the RO completes Part IV of the original USFK Form 700-19A-R-E.

d. Early departure or termination of employment. In the event that a contractor employee's association with a listed contract ends prior to their estimated date of departure from the ROK:

(1) The RO shall ensure the contractor employee and dependents out-process immediately and properly, to include:

(a) Return GFP to the appropriate offices.

(b) Turn in all USFK ID cards to the proper issuing authorities.

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(c) Close out motor vehicle registration by turning in decals, plates, related paperwork; and ensure proper disposition of such vehicles (the contractor is liable, on a non-reimbursable basis, for the disposal of any abandoned vehicles.)

(d) Out-process from all support privileges listed in Table C-1 and C-2.

(2) FKAQ will inform USFK Assistant Chief of Staff, J1 (FKJ1) when ICs/TRs and dependents change their status, rendering them ineligible for SOFA status and associated benefits IAW USFK Regulation 1-38.

4. Reporting of SOFA violations or contractor misconducts.

a. The RO shall immediately report to FKAQ all violations or misconduct concerning a contractor, contractor employee, or dependent. As necessary, the RO will consult with USFK law enforcement, judge advocates, base or garrison/Area commanders and KOs for advice and counsel to determine appropriate disposition, in coordination with the SA and FKAQ. Contractor misconduct can result in revocation of SOFA approval by FKAQ.

(1) Upon a determination that the designated IC or dependents engaged in business activities in the ROK other than those designated by the U.S. Representative to the SOFA Joint Committee, or

(2) Upon a determination that the designated IC/TR or dependents engaged in practices in violation of ROK or U.S. laws, or USFK instructions and policies.

(3) For severe violations, the RO may recommend the withdrawal of SOFA status or logistics support for a contractor or specific employee/dependent. If SOFA status is withdrawn, all logistics support privileges for the contractor employee and their dependents are automatically terminated. Once withdrawn for cause, FKAQ will not consider another period of SOFA approval for a minimum of two years.

(4) FKAQ maintains the unilateral right to terminate IC/TR SOFA status.

b. If FKAQ receives a law enforcement or other report of derogatory information, FKAQ will send a copy to the RO with a request for action and/or explanation.

c. The RO will assist with administrative action for reported violations or misconduct IAW the procedures listed below. The RO will consult with FKAQ about appropriate responses to violations and report actions taken against IC/TR personnel and/or their dependents. Upon receiving a report of derogatory information, the RO will:

(1) Investigate the circumstances surrounding the report.

(2) Take immediate appropriate corrective action.

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(3) Confiscate all ID cards and SOFA vehicle license plates if the corrective action includes an RO-initiated suspension or revocation of privileges. The RO may request law enforcement assistance in confiscating such items. The RO may authorize a post pass in lieu of a confiscated ID card unless installation access is also denied

(4) Notify FKAQ, in writing, of all administrative actions taken.

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Appendix A

USFKI 4901.01

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B-A-1

APPENDIX A TO ENCLOSURE B

SOFA DESIGNATION REQUEST PROCESS

All non-Korean contractors and its employees supporting U.S. Forces Korea are required to be SOFA designated to legally enter and work in the ROK. Failure to obtain SOFA designation is a direct violation of the SOFA and ROK law and is subject to prosecution by ROK authorities.

SOFA designation is a two-step process: 1) contract and 2) individual contractor employee.

Step 1: SOFA designation of the contract.

Responsible Party

Request Packet Required Documentation

Contracting Officer

1. Request for SOFA designation memorandum

2. Official Copy* of Contract/Task Order

3. PWS, SOW, or SOO

4. SOFA instruction language is included in the contract

5. DFARS 252.225-7040 is included in the contract for contingency requirement (or confirmation if not needed)

6. DD Form 254 (or confirmation if not needed)

7. NLT 45 days from contract performance start date, submit complete request packet** to Step 1 Mailbox at:

usarmy.humphreys.acc.mbx.411th-csb-fkaq-workflow@army.mil

* Official copy: Only wet or digital signature is acceptable. The KO’s name and official title shall be typed, stamped, or printed on the contract.

** Incomplete or inaccurate request will be returned without action. After the necessary re-work, KO will submit a new request packet. No partial or supplemental submission is accepted. Late submission with less than 45 days may result in delays of contract performance.

Step 2: SOFA designation of the individual contractor employee.

Responsible Party

New Arrival

Change of Data

Request Packet Required Documents

Responsible Officer

X X 1. USFK Form 700-19A-R-E, dated 31 January 2019

X X 2. USFK Form 237-E

X N/A 3. Certification of Ordinary Residence Memorandum

X + 4. Passport Data Page

X X 5. RO Appointment Memorandum

X + 6. Dependent(s): Spouse (passport and marriage certificate) and/or Child (passport and birth certificate)

X + 7. Unique dependent(s): USFK Form 700-19B-R-E

N/A X 8. Previously approved USFK Form 700-19A-R-E

X X 9. Submit complete request packet++ to Step 2 Mailbox at:

usarmy.humphreys.acc.mbx.411th-csb-fkaq@army.mil

+ RO will submit supporting documentation as applicable to the change of data.

++ Incomplete or inaccurate request will be returned without action. After the necessary re-work, RO will submit a new request packet. No partial or supplemental submission is accepted.

Reminder: All signatures on all documents shall be within 90 days of the SOFA start date.

mailto:usarmy.humphreys.acc.mbx.411th-csb-fkaq-workflow@army.mil mailto:usarmy.humphreys.acc.mbx.411th-csb-fkaq@army.mil

Appendix A

USFKI 4901.01

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B-A-2

Enclosure C

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ENCLOSURE C

SOFA BENEFITS AND LOGISTICS SUPPORT

1. SOFA Benefits. SOFA status provides potential legal benefits for designated IC/TR and dependents and 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, as provided for in SOFA Article IX, paragraph 3.

d. The use of U.S. military postal facilities, as 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 ROK laws and regulations respecting terms and conditions of employment and licensing or registration of businesses or corporations. U.S.

contractors directly hiring Korean national employees must comply with USFK Instruction 1400.01, Qualification Standards for Korean Employees and applicable USFK instructions 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. Protections of SOFA Article XXII, Criminal Jurisdiction, paragraphs 5, 7(b), and 9, and related Agreed Minutes and Understandings on Implementation, although ROK authorities 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.

2-1. Logistics Support. SOFA status is a precondition for USFK logistics support and is on a space available basis.

a. Corporate and individual logistics support may be provided to USFK ICs and TRs only IAW the SOFA, USFK instructions, and subject to availability. However, under

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C-2 no circumstances can a contractor or its employees/dependents be granted access privileges that are broader than USFK instructions or the SOFA.

b. USFK will not provide logistics support to contractors in the ROK unless such contractors are eligible for SOFA status.

c. The USFK SAs and ROs are responsible for coordinating logistics support for ICs/TRs.

d. Logistics support is a privilege provided by USFK and is not a contractual right.

Purchases in the Post Exchange or Base Exchange, commissary, and class VI store are subject to quantity limitations under a ration control system. Over-purchases or other violations of USFK instructions by contractor employees or dependents may result in the loss of logistics support and SOFA status.

2-2. Government Provided Logistics Support, Corporate. Specific logistics support provided to a contractor must be coordinated with the KO and USFK SA. The SA must coordinate available logistics support with appropriate agencies prior to the contractor’s performance in the ROK.

2-3. Government Provided Logistics Support, Employee.

a. ICs/TRs and their dependents may be provided logistics support IAW the

SOFA, USFK instructions, on a space available basis. To be authorized logistics support from USFK, a lawful IC (but not TR) dependent (see Enclosure GL for definitions) must live in the ROK with the employee. See Tables C-1 and C-2 for examples of available logistics support.

b. Some specific logistics support will be provided on a reimbursable basis. If so, ICs/TRs and their dependents will pay prevailing rates or fees for the logistics support received.

c. Eligibility for support for SOFA designated ICs/TRs and their dependents will be classified in one of the following three categories:

(1) Full Logistics Support: An IC, who is a U.S. citizen or a non-U.S. citizen with a U.S. green card, ordinarily resident in the U.S., and is employed in a full-time paid status with a period of performance greater than 179 days qualifies for full logistics support. Dependents of such ICs may also receive full logistics support. (See Table C- 1). All ICs/TRs and their dependents authorized full logistics support will receive ID cards. Local hires meeting the criteria above are eligible for full logistics support. A TR with dependent(s) receives full logistics support.

(2) Individual Logistics Support: An IC, who is a U.S. citizen or a non-U.S.

citizen with a U.S. green card, ordinarily resident in the U.S., and is employed in a full-time paid status with a period of performance of 179 days or less qualifies for individual

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C-3 logistics support. Additionally, ICs/TRs meeting the criteria for full logistics support but whose dependents do not meet the requirements for dependents of civilian local hires set out in USFK Instruction (USFKI)…