Status of Forces Agreements and Defense Cooperation Agreements: A Primer for US Defense Contractors

David Newsome, Senior Legal Counsel, KBRwyle, USA

Some of the largest US government defense contracts are for work to be performed OCONUS; that is, Outside of the Continental United States. The US Department of Defense (DOD) spends billions of dollars annually on base operations and services in Djibouti, Iraq, Afghanistan, and in a number of European countries, to mention a few. Millions are spent on such things as training, housing, and feeding troops, and maintaining equipment. To get a piece of the pie, US contractors must have extensive knowledge of the relevant laws and regulations of performing work OCONUS. Indeed, US contracts typically place the responsibility to comply with all relevant US and host-country laws upon the contractor. Thus, in order for US contractors to submit an accurate and compliant proposal, they must tailor their proposals to comply with the relevant and applicable laws and regulations. Of these, Status of Forces Agreements (SOFAs) and Defense Agreements (DAs) likely have the biggest impact on a contractor’s ability to bid, win, and perform the work. Accordingly, contractors must fully understand the parameters of these agreements. Contractors must understand the exemptions, rights, and privileges afforded by these agreements. This paper provides an overview of these agreements. First, it will briefly discuss the Federal Acquisition Regulation (FAR) clauses that require consideration of such agreements. Then, it will look at the various wartime agreements and how they effected subsequent agreements. This paper will then delve into some standard provisions of the agreements while actually presenting a few agreements for discussion and comparison purposes. Lastly, the paper will explore available options in the event a government fails to enforce or violates an agreement or provisions therein. Armed with this information, US contractors will be better able to enhance their understanding of these agreements and how the agreements impact their winning and performing US government OCONUS contracts.

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USA Contract Defence March 2018 Vol.11, No. 42, Winter 2018

David Newsome

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Dave is a senior legal counsel with KBRwyle, the global government services business of KBR, Inc., KBRwyle provides a full spectrum of engineering and logistics capabilities, including engineering and missions operations, program and acquisition management, government healthcare security solutions, information technology, science, test and evaluation, and training. Dave, as a transactions attorney, is involved in all phases of his divisions’ procurement process, from formation to administration, for federal government and commercial contracts and subcontracts, both domestic and international. Dave conducts the full spectrum of contract litigation before the Government Accountability Office and the Armed Services Board of Contract Appeals. Prior to joining KBRwyle, Dave served in the United States Army’s Judge Advocate General’s Corp, retiring in June 2010 after 20 years of active duty service. Dave held numerous acquisition-focused leadership positions, including Command Judge Advocate, Camp Arifijan, Kuwait; Team Chief, Contract and Fiscal Law Division; Chief, Contract Law Division, Heidelberg, Germany; and Contract Attorney, Joint Contracting Center, Kosovo. Dave received an LL.M in Government Procurement Law from The George Washington University; an LL.M from The Judge Advocate General’s Legal Center and School; and his J.D., M.Ed., and B.A from the University of Toledo. He is licensed to practice law in Ohio, Colorado, Washington, D.C., and Maryland, and is a registered Corporate Counsel in Virginia. Dave is a Certified Professional Contracts Manager, Certified Federal Contracts Manager, and a Certified Commercial Contracts Manager by the National Contract Management Association. He currently serves on the Board of Governors of the Virginia State Bar Corporate Counsel Committee, the Board of Advisors of the Public Contracting Institute, the Advisory Council of the recently formed George Mason University’s Chief Procurement Officer Advisory Council, and the ABA Section of Public Contract Law Contract Claims and Dispute Resolution Committee. Dave has served as a guest speaker and panelist for the ABA and various law school and law firm panels. Dave has earned the highest award bestowed by Toastmasters International, the Distinguished Toastmaster. Dave has published numerous how-to articles, primarily for the benefit of corporate counsel, a few of which include In-House Considerations for Reviewing Indemnification Clauses: A Primer, Contract Management Magazine, May 2012; Automatic Suspensions: A Solution In Need Of A Problem, Law360.com, May 11, 2012; Registering a Branch Office Outside the Continental United States (OCONUS): The Power of Attorney, NCMA Contract Management Magazine, April 2013; and How Contract Managers and In-House Counsel Can Reduce Litigation Costs, NCMA Contract Management, October 2015, and Status of Forces Agreements in Outside of the Continental United States (OCONUS) Contracting: The Good, the Bad, and the Iffy, NCMA Contract Management, June 2016.

KBRwyle

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KBRwyle is the global government services business of KBR, Inc., a global provider of differentiated professional services and technologies across the asset and program life cycle within the Hydrocarbons and Government Services Sectors.​ Orbital ATK is a global leader in aerospace and defense technologies. Orbital ATK designs, builds and delivers space, defense and aviation-related systems to customers around the world both as a prime contractor and as a merchant supplier. Its main products include launch vehicles and related propulsion systems; satellites and associated components and services; composite aerospace structures; tactical missiles, subsystems and defense electronics; and precision weapons, armament systems and ammunition. Headquartered in Dulles, Virginia, Orbital ATK employs approximately 13,000 people across the U.S. and several international locations.

USA Contract Defence March 2018 Vol.11, No. 42, Winter 2018