FAR 28.309—Contract clauses for workers’ compensation insurance.
Plain-English Summary
FAR 28.309 tells contracting officers which workers’ compensation insurance clause to include in solicitations and contracts when overseas work creates coverage issues under the Defense Base Act (DBA) or, in limited cases, when DBA coverage is waived. It covers two specific clauses: FAR 52.228-3, Workers’ Compensation Insurance (Defense Base Act), and FAR 52.228-4, Worker’s Compensation and War-Hazard Insurance Overseas. The section ties clause selection to three key factors: whether the contract is a public-work contract performed outside the United States, whether the contract is approved or financed under the Foreign Assistance Act of 1961, and whether the Secretary of Labor has waived DBA applicability. In practice, this section is a clause-selection rule, not a coverage-determination rule; the contracting officer must first determine whether DBA applies under FAR 28.305 and then insert the correct clause. The purpose is to ensure contractors understand and price the required insurance obligations for overseas labor, including compensation and war-hazard risks where applicable. For contractors, the practical significance is that the required insurance can materially affect cost, compliance, subcontracting, and mobilization planning on overseas projects.
Key Rules
Use DBA clause when DBA applies
Insert FAR 52.228-3 when the Defense Base Act applies and the contract is either a public-work contract performed outside the United States or a contract approved or financed under the Foreign Assistance Act of 1961 that is not excluded by FAR 28.305(b)(2).
Use overseas war-hazard clause if DBA waived
Insert FAR 52.228-4 when the contract is a public-work contract performed outside the United States and the Secretary of Labor has waived DBA applicability under FAR 28.305(d).
Clause choice depends on coverage status
This section does not itself decide whether DBA coverage exists; it directs the contracting officer to the DBA coverage rules in FAR 28.305 and then requires the matching clause based on that determination.
Applies only to specified overseas work
The clause requirements in this section are triggered by public-work contracts performed outside the United States, with an additional Foreign Assistance Act pathway for the DBA clause.
Insert clauses in both solicitations and contracts
The contracting officer must place the required clause in the solicitation and the resulting contract, so offerors know the insurance requirement before pricing and award.
Responsibilities
Contracting Officer
Determine whether the Defense Base Act applies by consulting FAR 28.305, then insert FAR 52.228-3 or FAR 52.228-4 as required. Ensure the clause appears in both the solicitation and the contract so the insurance obligation is clear before award.
Contractor
Review the solicitation to identify the required workers’ compensation or war-hazard insurance clause, obtain and maintain the necessary coverage, and price the insurance and compliance burden into the proposal and contract performance plan.
Agency
Support accurate acquisition planning for overseas public-work and foreign assistance contracts, including identifying whether the work location and funding/approval status trigger DBA-related insurance requirements.
Secretary of Labor
When applicable, waive the Defense Base Act for a public-work contract performed outside the United States, which then allows use of FAR 52.228-4 instead of the DBA clause.
Practical Implications
This section is mainly a clause-selection checkpoint: if the wrong clause is omitted or inserted, the contract may fail to impose the correct insurance requirement or may overstate the contractor’s obligations.
Overseas public-work contracts often involve significant insurance costs, so contractors should identify the clause early to avoid underpricing and later compliance problems.
A common pitfall is assuming all overseas work uses the same clause; the DBA clause and the war-hazard clause are not interchangeable and depend on different legal triggers.
Contracting officers should verify both the nature of the work and the funding/approval or waiver status before award, because the clause choice turns on those facts.
Contractors should also flow the requirement down to subcontractors as needed and confirm that their insurance program covers the geographic location and hazard profile of the work.
Official Regulatory Text
(a) The contracting officer shall insert the clause at 52.228-3 , Workers’ Compensation Insurance (Defense Base Act), in solicitations and contracts when the Defense Base Act applies (see 28.305 ) and- (1) The contract will be a public-work contract performed outside the United States; or (2) The contract will be approved or financed under the Foreign Assistance Act of1961 (Pub.L.87-195) and is not excluded by 28.305 (b)(2). (b) The contracting officer shall insert the clause at 52.228-4 , Worker’s Compensation and War-Hazard Insurance Overseas, in solicitations and contracts when the contract will be a public-work contract performed outside the United States and the Secretary of Labor waives the applicability of the Defense Base Act (see 28.305 (d)).