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Junius

Overseas Travel and the Defense Base Act

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Basic question:  If a contractor employee, based in the United States, goes TDY to an overseas location during the course of performance of a DoD service contract, does the Defense Base Act  (DBA) apply?

Background: Suppose you have a DoD service contract where performance occurs within the United States, with the exception of an annual TDY that requires a contractor employee to travel overseas.  The employee (a U.S. citizen) lives in the United States and, aside from this TDY, also works in the United States.  The DBA clause is not included in the contract.  Assume that, since the employee is a U.S. citizen, there is no applicable waiver from the Department of Labor.

FAR 28.305(b) specifies, “The Defense Base Act (42 U.S.C. 1651, et seq.) extends the Longshoremen’s and Harbor Workers’ Compensation Act (33 U.S.C. 901) to various classes of employees working outside the United States…” 

In determining whether or not DBA applies, FAR 28.305(c) simply refers to 42 U.S.C. 1651.  The interpretation of 42 U.S.C. 1651 is very broad.  For instance, DPAP released a policy memo in 2003 titled “Inclusion of Defense Base Act Clause in DoD Overseas Contracts” which states, in part, “the Defense Base Act clause at FAR 52.228-3 should be included in all DoD service contracts to be performed (either entirely or in part) outside of the United States…”

So, based on the above, I make the assumption that even a single TDY overseas could be considered performing, in part, a DoD service contract outside of the United States.  Therefore, the DBA applies and the clause needs to be included in the contract.  This would have pretty enormous implications because this situation is pretty common, and the DBA clause is rarely included (at least in my agency) in contracts unless contractor employees are actually living and working overseas in places like Afghanistan/Iraq/Pakistan.

There’s really a dearth of information out there on the DBA specifically as it relates to its applicability in Gov’t contracting.  My relatively fruitless searches are crowded out by a mass of results originating from the DBA industry, which apparently must be pretty lucrative.

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1 hour ago, Junius said:

The DBA clause is not included in the contract.

If a contractor employee, based in the United States, goes TDY to an overseas location during the course of performance of a DoD service contract, does the Defense Base Act  (DBA) apply?

If the clause is not in the contract the contractor did not procure DBA. If the contractor did not procure DBA then there is no coverage.

I believe that the contractor's normal insurance would cover the employee.

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For the purpose of the question at hand, whether or not the employee is covered by DBA insurance does not concern me.  I am specifically concerned with whether or not the Act applies.

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3 hours ago, Junius said:

Basic question:  If a contractor employee, based in the United States, goes TDY to an overseas location during the course of performance of a DoD service contract, does the Defense Base Act  (DBA) apply?

I think that the DPAP memo is clear. The DBA would apply unless it was waived. For further information, see https://www.dol.gov/owcp/dlhwc/FAQ/DBAFaqs.htm.

Quote

 

2. Who is covered under the DBA?

The DBA covers the following employment activities:

  • Work for private employers on U.S. military bases or on any lands used by the U.S. for military purposes outside of the United States, including those in U.S. Territories and possessions;
  • Work on public work contracts (see FAQ 3) with any U.S. government agency, including construction and service contracts in connection with national defense or with war activities outside the United States;
  • Work on contracts approved and funded by the U.S. under the Foreign Assistance Act, which among other things provides for cash sale of military equipment, materials, and services to its allies, if the contract is performed outside of the United States;
  • Work for American employers providing welfare or similar services outside the United States for the benefit of the Armed Services, e.g. the United Service Organizations (USO); and
  • Any injury or death occurring to any such employee during transportation to or from the place of employment, where the employer or the U.S. provides the transportation or the cost thereof.

If any one of the above criteria is met, all employees engaged in such employment, regardless of nationality including U.S. citizens and residents, host country nationals and local hires as well as third country nationals (individuals hired from another country to work in the host country), are covered under the Act.

The DBA does not apply to the injury or death of (1) an employee subject to the provisions of the Federal Employees' Compensation Act; (2) an employee engaged in agriculture, domestic service, or any employment that is casual and not in the usual course of the trade, business, or profession of the employer; and (3) a master or member of a crew of any vessel

 

 

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Don,

This is not particularly my area of expertise, so I defer to you. On the other hand, the FAQ you cite as the basis for your answer contains the following language:

"This page does not necessarily contain an exhaustive or current treatment of the DBA and should not, under any circumstances, substitute for a party's own research into the statutory, regulatory, and case law authorities on any given subject addressed by the following FAQs. The FAQs are an informational tool, not a final authority, and should not be cited or otherwise considered an authoritative statement of agency policy."

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It is required!  We are so reliant on our contract hire staff that this is a big problem with program offices sending thier contract hires overseas without much thought.  They just assume they can go TDY so can the contract hire.  If the employee is from a professional services company (may I say body shop) the odds are the company is not paying attention either.  No one really cares until something kills or injures the employee overseas and it all blows up in everyones face. 

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2 hours ago, here_2_help said:

Don,

This is not particularly my area of expertise, so I defer to you. On the other hand, the FAQ you cite as the basis for your answer contains the following language:

"This page does not necessarily contain an exhaustive or current treatment of the DBA and should not, under any circumstances, substitute for a party's own research into the statutory, regulatory, and case law authorities on any given subject addressed by the following FAQs. The FAQs are an informational tool, not a final authority, and should not be cited or otherwise considered an authoritative statement of agency policy."

Help,

My answer is based on the DPAP memo, which is an authoritative statement of agency policy. I provided a link to the FAQs in response to this:

Quote

There’s really a dearth of information out there on the DBA specifically as it relates to its applicability in Gov’t contracting.  My relatively fruitless searches are crowded out by a mass of results originating from the DBA industry, which apparently must be pretty lucrative.

 

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Apologies, Don. I was confused by your response.

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