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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