Defense Federal Acquisition Regulation Supplement; Contractors Performing Private Security Functions (DFARS Case 2011-D023), 52133-52138 [2011-20528]
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Federal Register / Vol. 76, No. 161 / Friday, August 19, 2011 / Rules and Regulations
2. Amend section 225.7002–1 by
revising paragraph (b) to read as follows:
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225.7002–1
Restrictions.
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(b) Hand or measuring tools, unless
the tools were produced in the United
States. For additional guidance, see PGI
225.7002–1(b).
■ 3. Amend section 225–7002–2 by
revising paragraph (c) to read as follows:
225.7002–2
Exceptions.
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(c) Acquisitions of items listed in FAR
25.104(a).
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[FR Doc. 2011–20531 Filed 8–18–11; 8:45 am]
BILLING CODE 5001–08–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 216, 225, and 252
RIN 0750–AH28
Defense Federal Acquisition
Regulation Supplement; Contractors
Performing Private Security Functions
(DFARS Case 2011–D023)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Interim rule.
AGENCY:
DoD is issuing an interim rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to implement sections of the
National Defense Authorization Act
(NDAA) for Fiscal Year (FY) 2008,
which establish minimum processes
and requirements for the selection,
accountability, training, equipping, and
conduct of personnel performing private
security functions.
DATES: Effective Date: August 19, 2011.
Comment Date: Comments on the
interim rule should be submitted in
writing to the address shown below on
or before October 18, 2011, to be
considered in the formation of the final
rule.
Æ Regulations.gov: https://
www.regulations.gov. Submit comments
via the Federal eRulemaking portal by
inputting ‘‘DFARS Case 2011–D023’’
under the heading ‘‘Enter keyword or
ID’’ and selecting ‘‘Search.’’ Select the
link ‘‘Submit a Comment’’ that
corresponds with ‘‘DFARS Case 2011–
D023.’’ Follow the instructions provided
at the ‘‘Submit a Comment’’ screen.
Please include your name, company
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SUMMARY:
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name (if any), and ‘‘DFARS Case 2011–
D023’’ on your attached document.
Æ E-mail: dfars@osd.mil. Include
DFARS Case 2011–D023 in the subject
line of the message.
Æ Fax: 703–602–0350.
Æ Mail: Defense Acquisition
Regulations System, Attn: Meredith
Murphy, OUSD (AT&L) DPAP/DARS,
Room 3B855, 3060 Defense Pentagon,
Washington, DC 20301–3060.
Comments received generally will be
posted without change to https://
www.regulations.gov, including any
personal information provided. To
confirm receipt of your comment(s),
please check www.regulations.gov,
approximately two to three days after
submission to verify posting (except
allow 30 days for posting of comments
submitted by mail).
FOR FURTHER INFORMATION CONTACT:
Meredith Murphy, Defense Acquisition
Regulations System, OUSD (AT&L)
DPAP/DARS, Room 3B855, 3060
Defense Pentagon, Washington, DC
20301–3060. Telephone 703–602–1302;
facsimile 703–602–0350.
SUPPLEMENTARY INFORMATION:
I. Background
The NDAA for FY 2008 (Pub. L. 110–
181, enacted October 28, 2008), section
862, entitled ‘‘Contractors Performing
Private Security Functions in Areas of
Combat Operations or Other Significant
Military Operations,’’ was amended by
section 853 of the NDAA for FY 2009
(Pub. L. 110–417, enacted October 14,
2008) and sections 831 and 832 of the
NDAA for FY 2011 (Pub. L. 111–383,
enacted January 7, 2011). An interim
final rule was published in the Federal
Register on July 17, 2009, to meet the
mandate of section 862 of the FY 2008
NDAA to provide policy and guidance
regulating the actions of DoD and other
Governmental private security
contractors. A clause to cover the
interagency requirements will be
covered by a separate and subsequent
FAR rule currently under development.
This interim rule is focused solely on
providing implementing contractual
language and a contract clause
mandated by statute and applicable to
DoD contracts only. While section 862
of the 2008 NDAA required
standardization of rules for private
security contractors among Government
agencies, DOD’s underlying instruction,
the Department of Defense Instruction
(DoDI) 3020.50, entitled ‘‘Private
Security Contractors Operating in Areas
of Contingency Operations, Combat
Operations, or Other Significant
Operations’’ at https://www.dtic.mil/whs/
directives/corres/pdf was written to
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52133
cover both DoD private security
contractors (in all contingency
operations) and interagency private
security contractors (in combat
operations). This interim rule
implements the legislation by
establishing (1) regulations addressing
the selection, training, equipping, and
conduct of personnel performing private
security functions in areas of
contingency operations, complex
contingency operations, or other
military operations or exercises that are
designated by the combatant
commander, (2) a contract clause, and
(3) remedies.
Section 833 of the NDAA for FY 2011
is entitled ‘‘Standards and Certification
for Private Security Contractors.’’ This
provision mandates the establishment of
third-party certification processes for
determining whether private security
contractors adhere to standards for
operational and business practices. The
required industry standard is currently
under development and will be
incorporated in the DFARS once the
standard is published.
The regulations implementing the
referenced statutory provisions are in
DFARS subpart 225.3, entitled
‘‘Contracts Performed Outside the
United States.’’ DFARS 225.302–3,
Definitions, provides the definition of
‘‘private security functions’’ from
section 862, as amended, and the
definition of ‘‘complex contingency
operations’’ from JP–102 (DoD
Dictionary). This coverage does not
apply to the performance of private
security functions within the United
States or outside the United States in
areas that are not (a) contingency
operations, (b) complex contingency
operations, or (c) other military
operations designated by the combatant
commander. Importantly, DFARS
225.302 applies to the performance of
private security functions in the
applicable areas, without regard to
whether the DoD contractor is a private
security contractor. For example, a
contractor delivering construction
materials in an area of contingency
operations might subcontract with a
private security contractor to protect its
supplies and employees during
delivery. Although the supplier of the
construction materials is not a private
security contractor, the requirements of
DFARS 252.225–7039, Contractors
Performing Private Security Functions,
are applicable. As a further example, the
same contractor, if delivering
construction materials to a base in
Germany is not governed, at this time,
by the requirements and limitations of
DFARS 252.225.7039 because Germany
is not an area of contingency operations,
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complex contingency operations, or
other significant military operations or
exercises that are designated by the
combatant commander. This is further
clarified at DFARS 225.302–4, Policy.
This subsection implements the relevant
policy document, DoDI 3020.50, and
assigns contractor responsibilities for
the selection, accountability, training,
equipping, and conduct of personnel
performing private security functions
under contracts in the covered areas. It
also assigns responsibilities and
establishes procedures for incident
reporting, use of and accountability for
equipment, and rules for the use of
force.
The statutes also include specific
remedies for violations of the
responsibilities and procedures in the
law, DoDI 3020.50, and DFARS
225.302–4. Without impinging on the
Government’s usual contractual
remedies (e.g., termination for default),
the Government may, at its discretion,
direct the contractor to remove or
replace any personnel who fail to
comply with, or violate, applicable
requirements of the clause at 252.225–
7039, Contractors Performing Private
Security Functions. Such corrective
actions must be taken at the contractor’s
own expense and without prejudice to
any other contractual rights. The statute
prescribes additional remedies as
follows:
1. Contracting officers must include a
contractor’s failure to comply in
appropriate past-performance databases.
2. If the contract is an award-fee
contract, the contracting officer must
include performance failure in the
assessment of award fees for the
relevant period (as well as authorizing
the treatment of such failures as a basis
for reducing or denying award fees for
the relevant period or recovering all or
part of award fees previously paid for
such period).
3. If the contractor fails to comply
with the Government’s direction to
remove or replace personnel, and such
failure to comply is severe, prolonged,
or repeated, the statute specifies the
authority of the contracting officer to
terminate the contract for default.
II. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and
13563 direct agencies to assess all costs
and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). E.O. 13563 emphasizes the
importance of quantifying both costs
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and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. This is a significant
regulatory action, and therefore, was
subject to review under section 6(b) of
E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993. This
rule is not a major rule under 5 U.S.C.
804.
III. Regulatory Flexibility Act
DoD does not expect this interim rule
to have a significant economic impact
on a substantial number of small entities
within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq.,
because the statute impacts only private
security contractors performing outside
the United States. However, an initial
regulatory flexibility analysis has been
performed and is summarized as
follows:
DoD is issuing an interim rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to implement section 862 of
the National Defense Authorization Act
(NDAA) for Fiscal Year (FY) 2008, as
amended by section 853 of the NDAA
for FY 2009 and sections 831 and 832
of the NDAA for FY 2011. The statutory
provisions add requirements and
limitations for contractors performing
private security functions outside the
United States in areas of contingency
operations, complex contingency
operations, or other military operations
or exercises that are designated by the
combatant commanders. The specific
requirements are included in
Department of Defense Instruction
3020.50, entitled ‘‘Private Security
Contractors Operating in Contingency
Operations, Combat Operations, or
Other Significant Military Operations.’’
These requirements are that contractors
performing in areas such as Iraq and
Afghanistan ensure that contractor
personnel performing private security
functions comply with the DoDI,
including (1) accounting for
Government-acquired and contractorfurnished property and (2) reporting
incidents in which a weapon is
discharged, personnel are attacked or
killed or property is destroyed, or
active, lethal countermeasures are
employed.
In FY 2010, DoD awarded 1,839
contracts for performance in Iraq and
Afghanistan. Of this total, 361, or 20
percent, were awarded to small
businesses. Firms performing private
security functions in these areas were
already required to report the
occurrence of incidences such as those
listed in the clause at DFARS 252.225–
7039, Contractors Performing Private
Security Functions, but there was no
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consistency in the manner of reporting
or the individual to whom the report
was to be made. This DFARS interim
rule and DoDI 3020.50 provide this
consistency and clarity and, in that
sense, serve to relieve any burden on
small businesses.
The interim rule contains information
collection requirements that require the
approval of the Office of Management
and Budget under the Paperwork
Burden Act (44 U.S.C. chapter 35).
There is an approved information
collection, OMB control number 0704–
0460, Synchronized Predeployment and
Operational Tracker (SPOT) System, in
the amount of approximately 150,000
hours. DoD has determined that the
currently approved burden hours are
sufficient to cover these requirements.
The rule does not duplicate, overlap,
or conflict with any other Federal rules.
There are no alternatives that
accomplish the stated objectives of the
applicable statutes.
DoD invites comments from small
business concerns and other interested
parties on the expected impact of this
rule on small entities.
DoD will also consider comments
from small entities concerning the
existing regulations in subparts affected
by this rule in accordance with 5 U.S.C.
610. Interested parties must submit such
comments separately and should cite 5
U.S.C. 610 (DFARS Case 2011–D023) in
correspondence.
IV. Paperwork Reduction Act
The rule contains information
collection requirements that require the
approval of the Office of Management
and Budget under the Paperwork
Reduction Act (44 U.S.C. chapter 35).
The clause at DFARS 252.225–7039,
Contractors Performing Private Security
Functions, requires contractors to use
the Synchronized Predeployment and
Operational Tracker (SPOT) system to
(1) register personnel performing private
security functions; (2) register weapons
to be carried by or available to be used
by personnel performing private
security functions; (3) register armored
vehicles, helicopters, and other military
vehicles operated by contractors
performing private security functions;
and (4) report certain incidents in which
personnel performing private security
functions are involved. These
requirements are covered by an
approved information collection, OMB
control number 0704–0460,
Synchronized Predeployment and
Operational Tracker (SPOT) System, in
the amount of approximately 150,000
hours.
DoD has determined that the currently
approved burden hours are sufficient to
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cover these requirements. However,
DoD will accept comments on how the
interim rule would impact either the
burden or other aspects of the approved
information collection.
V. Determination To Issue an Interim
Rule
A determination has been made under
the authority of the Secretary of Defense
that urgent and compelling reasons exist
to publish an interim rule without prior
opportunity for public comment
pursuant to 41 U.S.C. 1707 (formerly 41
U.S.C. 418b) and FAR 1.501–3(b). This
action is necessary because the
requirements mandated for inclusion in
DoD contracts by the FY 2011 NDAA
became effective immediately upon
enactment on January 7, 2011. Congress
has expressed continuing concern that
regulations for the oversight of private
security contractors are not yet in place.
The rule imposes new accountability
requirements and limitations on DoD
contractors’ use of private security
personnel. It is imperative that these
requirements and limitations be
included in DoD contracts as soon as
possible in order to ensure that all
employees of the Contractor who are
responsible for personnel performing
private security functions under DoD
contracts are briefed on and understand
their obligation to comply with all
qualification, training, screening
(including, if applicable, thorough
background checks), and security
requirements established by DoDI
3020.50, Private Security Contractors
Operating in Areas of Contingency
Operations, Combat Operations, or
Other Significant Operations, as well as
applicable laws and regulations of the
United States and the host country and
applicable treaties and international
agreements regarding performance of
private security functions. However,
DoD will consider public comments
received in response to this interim rule
in the formation of the final rule.
List of Subjects in 48 CFR Parts 216,
225, and 252
Government procurement.
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Ynette R. Shelkin,
Editor, Defense Acquisition Regulations
System.
1. The authority citation for 48 CFR
parts 216, 225, and 252 continues to
read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
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216.405–270
70]
[Redesignated as 216.405–2–
2. Redesignate section 216.405–270 as
216.405–2–70.
■ 3. Add section 216.405–2–71 to read
as follows:
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216.405–2–71 Award fee reduction or
denial for failure to comply with
requirements relating to performance of
private security functions.
(a) In accordance with section 862 of
the National Defense Authorization Act
for Fiscal Year 2008, as amended, the
contracting officer shall include in any
award-fee plan a requirement to review
contractor compliance with, or violation
of, applicable requirements of the
contract with regard to the performance
of private security functions in an area
of contingency operations, complex
contingency operations, or other
military operations or exercises that are
designated by the combatant
commander (see 225.370).
(b) In evaluating the contractor’s
performance under a contract that
includes the clause at 252.225–7039,
Contractors Performing Private Security
Functions, the contracting officer shall
consider reducing or denying award fees
for a period if the contractor fails to
comply with the requirements of the
clause during such period. The
contracting officer’s evaluation also
shall consider recovering all or part of
award fees previously paid for such
period.
PART 225—FOREIGN ACQUISITION
4. Add sections 225.370 through
225.370–6 to subpart 225.3 to read as
follows:
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Subpart 225.3—Contracts Performed
Outside the United States
Sec.
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225.370 Contractors performing private
security functions.
225.370–1 Scope.
225.370–2 Applicability.
225.370–3 Definitions.
225.370–4 Policy.
225.370–5 Remedies.
225.370–6 Contract clause.
225.370 Contractors performing private
security functions.
Therefore, 48 CFR parts 216, 225, and
252 are amended as follows:
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PART 216—TYPES OF CONTRACTS
225.370–1
Scope.
This section prescribes policy for
implementing section 862 of the
National Defense Authorization Act for
Fiscal Year 2008 (Pub. L. 110–181), as
amended by section 853 of the National
Defense Authorization Act for Fiscal
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52135
Year 2009 (Pub. L. 110–417) and
sections 831 and 832 of the National
Defense Authorization Act for Fiscal
Year 2011 (Pub. L. 111–383).
225.370–2
Applicability.
This section applies to acquisitions
for supplies and services that require
the performance of private security
functions in areas of—
(a) Contingency operations (see FAR
2.101);
(b) Complex contingency operations;
or
(c) Other military operations or
exercises that are designated by the
combatant commander.
225.370–3
Definitions.
As used in this section—
Complex contingency operations
means large-scale peace operations (or
elements thereof) conducted by a
combination of military forces and
nonmilitary organizations that involve
one or more of the elements of peace
operations that include one or more
elements of other types of operations,
such as foreign humanitarian assistance,
nation assistance, support to
insurgency, or support to
counterinsurgency.
Private security functions means
activities engaged in by a contractor,
including—
(1) Guarding of personnel, facilities,
designated sites, or property of a Federal
agency, the contractor or subcontractor,
or a third party; and
(2) Any other activity for which
personnel are required to carry weapons
in the performance of their duties.
225.370–4
Policy.
(a) The policy, responsibilities,
procedures, accountability, training,
equipping, and conduct of personnel
performing private security functions in
designated areas are addressed in
Department of Defense Instruction
(DoDI) 3020.50, Private Security
Contractors Operating in Contingency
Operations, Combat Operations, or
Other Significant Military Operations, at
https://www.dtic.mil/whs/directives/
corres/pdf/302050p.pdf.
(b) The requirements of this section
apply to contractors that employ private
security contractors in areas of
contingency operations, complex
contingency operations, or other
military operations or exercises that are
designated by the combatant
commander, whether the contract is for
the performance of private security
functions or other supplies or services.
(c) DoD requires contractors described
in paragraph (b) above to—
(1) Ensure that all employees of the
contractor who are responsible for
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performing private security functions
comply with orders, directives, and
instructions to contractors performing
private security functions for—
(i) Registering, processing, accounting
for, managing, overseeing, and keeping
appropriate records of personnel
performing private security functions.
This includes ensuring the issuance,
maintenance, and return of Personal
Identity Verification credentials in
accordance with FAR clause 52.204–9,
Personal Identity Verification of
Contractor Personnel, and DoD
procedures, including revocation of any
physical and/or logistical access (as
defined by Homeland Security
Presidential Directive (HSPD–12))
granted to such personnel;
(ii) Authorizing and accounting for
weapons to be carried by or available to
be used by personnel performing private
security functions;
(A) All weapons must be registered in
the Synchronized Predeployment
Operational Tracker (SPOT) materiel
tracking system.
(B) In addition, all weapons that are
Government-furnished property must be
assigned a unique identifier in
accordance with the clauses at 252.211–
7003 and 252.245.7001 and physically
marked in accordance with MIL–STD
130 (current version) and DoD directives
and instructions. The items must be
registered in the DoD Item Unique
Identification (IUID) Registry (https://
www.bpn.gov/iuid/);
(iii) Registering and identifying
armored vehicles, helicopters, and other
military vehicles operated by
contractors performing private security
functions;
(A) All armored vehicles, helicopters,
and other military vehicles must be
registered in SPOT.
(B) In addition, all armored vehicles,
helicopters, and other military vehicles
that are Government-furnished property
must be assigned a unique identifier in
accordance with the clauses at 252.211–
7003 and 252.245.7001 and physically
marked in accordance with MIL–STD
130 (current version) and DoD directives
and instructions. The items must be
registered in the DoD IUID Registry; and
(iv) Reporting incidents in which—
(A) A weapon is discharged by
personnel performing private security
functions;
(B) Personnel performing private
security functions are attacked, killed,
or injured;
(C) Persons are killed or injured or
property is destroyed as a result of
conduct by contractor personnel;
(D) A weapon is discharged against
personnel performing private security
functions or personnel performing such
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functions believe a weapon was so
discharged; or
(E) Active, non-lethal
countermeasures (other than the
discharge of a weapon) are employed by
personnel performing private security
functions in response to a perceived
immediate threat;
(2) Ensure that all employees of the
contractor who are responsible for
personnel performing private security
functions are briefed on and understand
their obligation to comply with—
(i) Qualification, training, screening
(including, if applicable, thorough
background checks), and security
requirements established by DoDI
3020.50;
(ii) Applicable laws and regulations of
the United States and the host country
and applicable treaties and international
agreements regarding performance of
the functions of the private security
contractors;
(iii) Orders, directives, and
instructions issued by the applicable
commander of a combatant command
relating to weapons, equipment, force
protection, security, health, safety, or
relations and interaction with locals;
and
(iv) Rules on the use of force issued
by the applicable commander of a
combatant command for personnel
performing private security functions;
and
(3) Cooperate with any Governmentauthorized investigation by providing
access to employees performing private
security functions and relevant
information in the possession of the
contractor.
225.370–5
Remedies.
(a) In addition to other remedies
available to the Government—
(1) The contracting officer may direct
the contractor, at its own expense, to
remove and replace any contractor
personnel who fail to comply with or
violate applicable requirements. Such
action may be taken at the Government’s
discretion without prejudice to its rights
under any other contract provision,
including termination for default.
Required contractor actions include—
(i) Ensuring the return of personal
identity verification credentials;
(ii) Ensuring the return of any other
equipment issued to the employee
under the contract; and
(iii) Revocation of any physical and/
or logistical access granted to such
personnel;
(2) The contracting officer shall
include the contractor’s failure to
comply with the requirements of this
subpart in appropriate databases of past
performance and consider any such
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failure in any responsibility
determination or evaluation of past
performance;
(3) In the case of award-fee contracts,
the contracting officer shall consider a
contractor’s failure to comply with the
requirements of this subpart in the
evaluation of the contractor’s
performance during the relevant
evaluation period, and may treat such
failure as a basis for reducing or denying
award fees for such period or for
recovering all or part of award fees
previously paid for such period; and
(4) If the contractor fails to comply
with the Government’s direction to
remove or replace personnel (see
paragraph (a)(1) of this subsection), and
such failure to comply is severe,
prolonged, or repeated, the contracting
officer may terminate the contract for
default.
(b) If the performance failures are
significant or repeated, the contracting
officer shall refer the contractor to the
appropriate suspension and debarment
official.
225.370–6
Contract clause.
Use the clause at 252.225–7039,
Contractors Performing Private Security
Functions, in all solicitations and
contracts to be performed in areas of—
(a) Contingency operations;
(b) Complex contingency operations;
or
(c) Other military operations or
exercises, when designated by the
combatant commander.
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
5. Amend section 252.212–7001 as
follows:
■ a. Revise the clause date to read
‘‘(AUG 2011)’’;
■ b. Redesignate paragraphs (b)(16)
through (b)(27) as (b)(17) through
(b)(28);
■ c. Add new paragraph (b)(16); and
■ d. Revise paragraph (c).
■
252.212–7001 Contract Terms and
Conditions Required to Implement Statutes
or Executive Orders Applicable to Defense
Acquisitions of Commercial Items.
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(b) * * *
(16) ll 252.225–7039, Contractors
Performing Private Security Functions
(AUG 2011) (Section 862 of Pub. L. 110–
181, as amended by section 853 of Pub.
L. 110–417 and sections 831 and 832 of
Pub. L. 111–383).
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(c) In addition to the clauses listed in
paragraph (e) of the Contract Terms and
Conditions Required to Implement
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Statutes or Executive Orders—
Commercial Items clause of this contract
(FAR 52.212–5), the Contractor shall
include the terms of the following
clauses, if applicable, in subcontracts
for commercial items or commercial
components, awarded at any tier under
this contract:
(1) 252.225–7039, Contractors
Performing Private Security Functions
(AUG 2011) (Section 862 of Pub. L. 110–
181, as amended by section 853 of Pub.
L. 110–417 and sections 831 and 832 of
Pub. L. 111–383).
(2) 252.237–7010, Prohibition on
Interrogation of Detainees by Contractor
Personnel (NOV 2010) (Section 1038 of
Pub. L. 111–84).
(3) 252.237–7019, Training for
Contractor Personnel Interacting with
Detainees (SEP 2006) (Section 1092 of
Pub. L. 108–375).
(4) 252.247–7003, Pass-Through of
Motor Carrier Fuel Surcharge
Adjustment to the Cost Bearer (SEP
2010) (Section 884 of Pub. L. 110–417).
(5) 252.247–7023, Transportation of
Supplies by Sea (MAY 2002) (10 U.S.C.
2631).
(6) 252.247–7024, Notification of
Transportation of Supplies by Sea (MAR
2000) (10 U.S.C. 2631).
*
*
*
*
*
■ 6. Add section 252.225–7039 to read
as follows:
252.225–7039 Contractors Performing
Private Security Functions.
wreier-aviles on DSKDVH8Z91PROD with RULES2
As prescribed in 225.370–6, insert the
following clause:
CONTRACTORS PERFORMING PRIVATE
SECURITY FUNCTIONS (AUG 2011)
(a) Definition.
Private security functions means activities
engaged in by a contractor, including—
(i) Guarding of personnel, facilities,
designated sites, or property of a Federal
agency, the contractor or subcontractor, or a
third party; or
(ii) Any other activity for which personnel
are required to carry weapons in the
performance of their duties.
(b) Requirements. The Contractor is
required to—
(1) Ensure that all employees of the
Contractor who are responsible for
performing private security functions under
this contract comply with any orders,
directives, and instructions to Contractors
performing private security functions that are
identified in the contract for—
(i) Registering, processing, accounting for,
managing, overseeing, and keeping
appropriate records of personnel performing
private security functions. This includes
ensuring the issuance, maintenance, and
return of Personal Identity Verification
credentials in accordance with FAR 52.204–
19, Personnel Identity Verification of
Contractor Personnel, and DoD procedures,
including revocation of any physical and/or
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15:30 Aug 18, 2011
Jkt 223001
logistical access (as defined by Homeland
Security Presidential Directive (HSPD–12))
granted to such personnel;
(ii) Authorizing and accounting for
weapons to be carried by or available to be
used by personnel performing private
security functions;
(A) All weapons must be registered in the
Synchronized Predeployment Operational
Tracker (SPOT) materiel tracking system.
(B) In addition, all weapons that are
Government-furnished property must be
assigned a unique identifier in accordance
with the clauses at DFARS 252.211–7003,
Item Identification and Valuation, and
DFARS 252.245.7001, Tagging, Labeling, and
Marking of Government-Furnished Property,
and physically marked in accordance with
MIL–STD 130 (current version) and DoD
directives and instructions. The items must
be registered in the DoD Item Unique
Identification (IUID) Registry (https://
www.bpn.gov/iuid/);
(iii) Registering and identifying armored
vehicles, helicopters, and other military
vehicles operated by Contractors performing
private security functions;
(A) All armored vehicles, helicopters, and
other military vehicles must be registered in
SPOT.
(B) In addition, all armored vehicles,
helicopters, and other military vehicles that
are Government-furnished property must be
assigned a unique identifier in accordance
with the clauses at DFARS 252.211–7003 and
DFARS 252.245.7001 and physically marked
in accordance with MIL–STD 130 (current
version) and DoD directives and instructions.
The items must be registered in the DoD IUID
Registry (https://www.bpn.gov/iuid/); and
(iv) Reporting incidents in which—
(A) A weapon is discharged by personnel
performing private security functions;
(B) Personnel performing private security
functions are attacked, killed, or injured;
(C) Persons are killed or injured or
property is destroyed as a result of conduct
by contractor personnel;
(D) A weapon is discharged against
personnel performing private security
functions or personnel performing such
functions believe a weapon was so
discharged; or
(E) Active, non-lethal countermeasures
(other than the discharge of a weapon) are
employed by personnel performing private
security functions in response to a perceived
immediate threat;
(2) Ensure that all employees of the
Contractor who are responsible for personnel
performing private security functions under
this contract are briefed on and understand
their obligation to comply with—
(i) Qualification, training, screening
(including, if applicable, thorough
background checks), and security
requirements established by DoDI 3020.50,
Private Security Contractors Operating in
Areas of Contingency Operations, Combat
Operations, or Other Significant Operations,
at https://www.dtic.mil/whs/directives/corres/
pdf;
(ii) Applicable laws and regulations of the
United States and the host country and
applicable treaties and international
agreements regarding performance of private
security functions;
PO 00000
Frm 00007
Fmt 4701
Sfmt 4700
52137
(iii) Orders, directives, and instructions
issued by the applicable commander of a
combatant command relating to weapons,
equipment, force protection, security, health,
safety, or relations and interaction with
locals; and
(iv) Rules on the use of force issued by the
applicable commander of a combatant
command for personnel performing private
security functions; and
(3) Cooperate with any Governmentauthorized investigation by providing access
to employees performing private security
functions and relevant information in the
possession of the Contractor regarding the
incident concerned.
(c) Remedies. In addition to other remedies
available to the Government—
(1) The Contracting Officer may direct the
Contractor, at its own expense, to remove and
replace any Contractor personnel who fail to
comply with or violate applicable
requirements of this contract. Such action
may be taken at the Government’s discretion
without prejudice to its rights under any
other provision of this contract, including
termination for default. Required Contractor
actions include—
(i) Ensuring the return of personal identity
verification credentials;
(ii) Ensuring the return of other equipment
issued to the employee under the contract;
and
(iii) Revocation of any physical and/or
logistical access granted to such personnel;
(2) The Contractor’s failure to comply with
the requirements of this clause will be
included in appropriate databases of past
performance and may be considered in any
responsibility determination or evaluation of
past performance;
(3) If this is an award-fee contract, the
Contractor’s failure to comply with the
requirements of this clause shall be
considered in the evaluation of the
Contractor’s performance during the relevant
evaluation period, and the Contracting
Officer may treat such failure to comply as
a basis for reducing or denying award fees for
such period or for recovering all or part of
award fees previously paid for such period;
and
(4) This contract may be terminated for
default if the Contractor fails to comply with
the requirements of paragraph (b) of this
clause or, if directed by the Contracting
Officer, fails to remove or replace, at its own
expense, any of its personnel who violate the
requirements of paragraph (b) of this clause.
(d) Rule of construction. The duty of the
Contractor to comply with the requirements
of this clause shall not be reduced or
diminished by the failure of a higher- or
lower-tier Contractor to comply with the
clause requirements or by a failure of the
contracting activity to provide required
oversight.
(e) Subcontracts. The Contractor shall
include the substance of this clause,
including this paragraph (e), in all
subcontracts that will be performed in areas
of contingency operations, complex
contingency operations, or other military
operations or exercises designated by the
Combatant Commander.
(End of clause)
E:\FR\FM\19AUR2.SGM
19AUR2
52138
Federal Register / Vol. 76, No. 161 / Friday, August 19, 2011 / Rules and Regulations
7. Revise section 252.244–7000 to
read as follows:
■
252.244–7000 Subcontracts for
Commercial Items and Commercial
Components (DoD Contracts).
As prescribed in 244.403, use the
following clause:
SUBCONTRACTS FOR COMMERCIAL
ITEMS AND COMMERCIAL COMPONENTS
(DOD CONTRACTS) (AUG 2011)
In addition to the clauses listed in
paragraph (c) of the Subcontracts for
Commercial Items clause of this contract
(Federal Acquisition Regulation 52.244–6),
the Contractor shall include the terms of the
following clauses, if applicable, in
subcontracts for commercial items or
commercial components, awarded at any tier
under this contract:
(a) 252.225–7009 Restriction on
Acquisition of Certain Articles Containing
Specialty Metals (JAN 2011) (10 U.S.C.
2533b).
(b) 252.225–7039, Contractors Performing
Private Security Functions (AUG 2011)
(Section 862 of Pub. L. 110–181, as amended
by section 853 of Pub. L. 110–417 and
sections 831 and 832 of Pub. L. 111–383).
(c) 252.236–7013 Requirement for
Competition Opportunity for American Steel
Producers, Fabricators, and Manufacturers
(JAN 2009) (Pub. L. 110–329, Division E,
Section 108).
(d) 252.237–7010 Prohibition on
Interrogation of Detainees by Contractor
Personnel (NOV 2010) (Section 1038 of Pub.
L. 111–84).
(e) 252.237–7019 Training for Contractor
Personnel Interacting with Detainees (SEP
2006) (Section 1092 of Pub. L. 108–375).
(f) 252.246–7003 Notification of Potential
Safety Issues (JAN 2007).
(g) 252.247–7023 Transportation of
Supplies by Sea (MAY 2002) (10 U.S.C.
2631).
(h) 252.247–7024 Notification of
Transportation of Supplies by Sea (MAR
2000) (10 U.S.C. 2631).
(End of clause)
[FR Doc. 2011–20528 Filed 8–18–11; 8:45 am]
BILLING CODE 5001–08–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 209 and 252
wreier-aviles on DSKDVH8Z91PROD with RULES2
RIN 0750–AG92
Defense Federal Acquisition
Regulation Supplement; Identification
of Critical Safety Items (DFARS Case
2010–D022)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
VerDate Mar<15>2010
15:30 Aug 18, 2011
Jkt 223001
DoD is issuing a final rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to add a contract clause that
clearly identifies any items being
purchased that are critical safety items
so that the proper risk-based
surveillance can be performed.
DATES: Effective Date: August 19, 2011.
FOR FURTHER INFORMATION CONTACT: Ms.
Meredith Murphy, 703–602–1302.
SUPPLEMENTARY INFORMATION:
SUMMARY:
I. Background
DoD published a proposed rule at 76
FR 14641 on March 17, 2011, to add a
contract clause that clearly identifies
any items being purchased that are
critical safety items so that the proper
risk-based surveillance can be
performed. One public comment was
received in response to the proposed
rule.
II. Discussion and Analysis of the
Public Comment
Comment: The respondent noted that
the DFARS case specifically addresses
aviation and ship critical safety items,
but states that protective personal
equipment, such as body armor and
helmets, can also have catastrophic
results if they fail. The respondent
asked how DoD ensures that contract
administration activities apply
increased surveillance procedures in
these types of contracts.
Response: The additional risk-based
surveillance required for aviation and
ship critical safety items is mandated by
law (section 802 of the National Defense
Authorization Act for Fiscal Year 2004
and section 130 of the National Defense
Authorization Act for Fiscal Year 2007).
There is no equivalent statutory
requirement for protective personal
equipment, and instituting such a
requirement is outside the scope of this
case. However, the respondent’s
comment has been forwarded to the
Defense Contract Management Agency
for future consideration.
The respondent also asked about the
process that ensures that contract
administration activities apply
increased surveillance procedures when
aviation and ship critical safety items
have been identified. The process was
summarized in the preamble to the
proposed rule published at 76 FR 14642
on March 17, 2011. Briefly, the
combination of the actions of the design
control activities, joint agency
instructions (e.g., Management of
Aviation Critical Safety Items),
limitations on contracting with sources
that have not been approved by the
design control activity, and focus on
PO 00000
Frm 00008
Fmt 4701
Sfmt 4700
contract administration will ensure the
proper surveillance for these critical
items.
The respondent did not recommend
changes to the DFARS text or clause,
and the final rule does not revise the
DFARS text or clause from that
published in the proposed rule.
II. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and
13563 direct agencies to assess all costs
and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). E.O. 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. This is a significant
regulatory action and, therefore, was
subject to review under section 6(b) of
E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993. This
rule is not a major rule under 5 U.S.C.
804.
IV. Regulatory Flexibility Act
The Department of Defense certifies
that this final rule will not have a
significant economic impact on a
substantial number of small entities
within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq. Its
purpose is internal to the Government
only by alerting Government qualityassurance activities to existing
heightened surveillance requirements
that are imposed by DoD requiring
activities. The process for identifying an
item as a critical safety item occurs
entirely outside the acquisition process,
as does the process of approving a
source for production of a critical safety
item. No comments from small entities
were received in response to publication
of the proposed rule.
V. Paperwork Reduction Act
The rule does not contain any
information collection requirements that
require the approval of the Office of
Management and Budget under the
Paperwork Reduction Act (44 U.S.C.
chapter 35).
List of Subjects in 48 CFR Parts 209 and
252
Government procurement.
Ynette R. Shelkin,
Editor, Defense Acquisition Regulations
System.
Therefore, 48 CFR parts 209 and 252
are amended as follows:
E:\FR\FM\19AUR2.SGM
19AUR2
]]>Agencies
[Federal Register Volume 76, Number 161 (Friday, August 19, 2011)]
[Rules and Regulations]
[Pages 52133-52138]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-20528]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 216, 225, and 252
RIN 0750-AH28
Defense Federal Acquisition Regulation Supplement; Contractors
Performing Private Security Functions (DFARS Case 2011-D023)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Interim rule.
-----------------------------------------------------------------------
SUMMARY: DoD is issuing an interim rule amending the Defense Federal
Acquisition Regulation Supplement (DFARS) to implement sections of the
National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2008,
which establish minimum processes and requirements for the selection,
accountability, training, equipping, and conduct of personnel
performing private security functions.
DATES: Effective Date: August 19, 2011.
Comment Date: Comments on the interim rule should be submitted in
writing to the address shown below on or before October 18, 2011, to be
considered in the formation of the final rule.
[cir] Regulations.gov: https://www.regulations.gov. Submit comments
via the Federal eRulemaking portal by inputting ``DFARS Case 2011-
D023'' under the heading ``Enter keyword or ID'' and selecting
``Search.'' Select the link ``Submit a Comment'' that corresponds with
``DFARS Case 2011-D023.'' Follow the instructions provided at the
``Submit a Comment'' screen. Please include your name, company name (if
any), and ``DFARS Case 2011-D023'' on your attached document.
[cir] E-mail: dfars@osd.mil. Include DFARS Case 2011-D023 in the
subject line of the message.
[cir] Fax: 703-602-0350.
[cir] Mail: Defense Acquisition Regulations System, Attn: Meredith
Murphy, OUSD (AT&L) DPAP/DARS, Room 3B855, 3060 Defense Pentagon,
Washington, DC 20301-3060.
Comments received generally will be posted without change to https://www.regulations.gov, including any personal information provided. To
confirm receipt of your comment(s), please check www.regulations.gov,
approximately two to three days after submission to verify posting
(except allow 30 days for posting of comments submitted by mail).
FOR FURTHER INFORMATION CONTACT: Meredith Murphy, Defense Acquisition
Regulations System, OUSD (AT&L) DPAP/DARS, Room 3B855, 3060 Defense
Pentagon, Washington, DC 20301-3060. Telephone 703-602-1302; facsimile
703-602-0350.
SUPPLEMENTARY INFORMATION:
I. Background
The NDAA for FY 2008 (Pub. L. 110-181, enacted October 28, 2008),
section 862, entitled ``Contractors Performing Private Security
Functions in Areas of Combat Operations or Other Significant Military
Operations,'' was amended by section 853 of the NDAA for FY 2009 (Pub.
L. 110-417, enacted October 14, 2008) and sections 831 and 832 of the
NDAA for FY 2011 (Pub. L. 111-383, enacted January 7, 2011). An interim
final rule was published in the Federal Register on July 17, 2009, to
meet the mandate of section 862 of the FY 2008 NDAA to provide policy
and guidance regulating the actions of DoD and other Governmental
private security contractors. A clause to cover the interagency
requirements will be covered by a separate and subsequent FAR rule
currently under development.
This interim rule is focused solely on providing implementing
contractual language and a contract clause mandated by statute and
applicable to DoD contracts only. While section 862 of the 2008 NDAA
required standardization of rules for private security contractors
among Government agencies, DOD's underlying instruction, the Department
of Defense Instruction (DoDI) 3020.50, entitled ``Private Security
Contractors Operating in Areas of Contingency Operations, Combat
Operations, or Other Significant Operations'' at https://www.dtic.mil/whs/directives/corres/pdf was written to cover both DoD private
security contractors (in all contingency operations) and interagency
private security contractors (in combat operations). This interim rule
implements the legislation by establishing (1) regulations addressing
the selection, training, equipping, and conduct of personnel performing
private security functions in areas of contingency operations, complex
contingency operations, or other military operations or exercises that
are designated by the combatant commander, (2) a contract clause, and
(3) remedies.
Section 833 of the NDAA for FY 2011 is entitled ``Standards and
Certification for Private Security Contractors.'' This provision
mandates the establishment of third-party certification processes for
determining whether private security contractors adhere to standards
for operational and business practices. The required industry standard
is currently under development and will be incorporated in the DFARS
once the standard is published.
The regulations implementing the referenced statutory provisions
are in DFARS subpart 225.3, entitled ``Contracts Performed Outside the
United States.'' DFARS 225.302-3, Definitions, provides the definition
of ``private security functions'' from section 862, as amended, and the
definition of ``complex contingency operations'' from JP-102 (DoD
Dictionary). This coverage does not apply to the performance of private
security functions within the United States or outside the United
States in areas that are not (a) contingency operations, (b) complex
contingency operations, or (c) other military operations designated by
the combatant commander. Importantly, DFARS 225.302 applies to the
performance of private security functions in the applicable areas,
without regard to whether the DoD contractor is a private security
contractor. For example, a contractor delivering construction materials
in an area of contingency operations might subcontract with a private
security contractor to protect its supplies and employees during
delivery. Although the supplier of the construction materials is not a
private security contractor, the requirements of DFARS 252.225-7039,
Contractors Performing Private Security Functions, are applicable. As a
further example, the same contractor, if delivering construction
materials to a base in Germany is not governed, at this time, by the
requirements and limitations of DFARS 252.225.7039 because Germany is
not an area of contingency operations,
[[Page 52134]]
complex contingency operations, or other significant military
operations or exercises that are designated by the combatant commander.
This is further clarified at DFARS 225.302-4, Policy. This subsection
implements the relevant policy document, DoDI 3020.50, and assigns
contractor responsibilities for the selection, accountability,
training, equipping, and conduct of personnel performing private
security functions under contracts in the covered areas. It also
assigns responsibilities and establishes procedures for incident
reporting, use of and accountability for equipment, and rules for the
use of force.
The statutes also include specific remedies for violations of the
responsibilities and procedures in the law, DoDI 3020.50, and DFARS
225.302-4. Without impinging on the Government's usual contractual
remedies (e.g., termination for default), the Government may, at its
discretion, direct the contractor to remove or replace any personnel
who fail to comply with, or violate, applicable requirements of the
clause at 252.225-7039, Contractors Performing Private Security
Functions. Such corrective actions must be taken at the contractor's
own expense and without prejudice to any other contractual rights. The
statute prescribes additional remedies as follows:
1. Contracting officers must include a contractor's failure to
comply in appropriate past-performance databases.
2. If the contract is an award-fee contract, the contracting
officer must include performance failure in the assessment of award
fees for the relevant period (as well as authorizing the treatment of
such failures as a basis for reducing or denying award fees for the
relevant period or recovering all or part of award fees previously paid
for such period).
3. If the contractor fails to comply with the Government's
direction to remove or replace personnel, and such failure to comply is
severe, prolonged, or repeated, the statute specifies the authority of
the contracting officer to terminate the contract for default.
II. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This is a significant regulatory action, and therefore, was subject to
review under section 6(b) of E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993. This rule is not a major rule under 5
U.S.C. 804.
III. Regulatory Flexibility Act
DoD does not expect this interim rule to have a significant
economic impact on a substantial number of small entities within the
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.,
because the statute impacts only private security contractors
performing outside the United States. However, an initial regulatory
flexibility analysis has been performed and is summarized as follows:
DoD is issuing an interim rule amending the Defense Federal
Acquisition Regulation Supplement (DFARS) to implement section 862 of
the National Defense Authorization Act (NDAA) for Fiscal Year (FY)
2008, as amended by section 853 of the NDAA for FY 2009 and sections
831 and 832 of the NDAA for FY 2011. The statutory provisions add
requirements and limitations for contractors performing private
security functions outside the United States in areas of contingency
operations, complex contingency operations, or other military
operations or exercises that are designated by the combatant
commanders. The specific requirements are included in Department of
Defense Instruction 3020.50, entitled ``Private Security Contractors
Operating in Contingency Operations, Combat Operations, or Other
Significant Military Operations.'' These requirements are that
contractors performing in areas such as Iraq and Afghanistan ensure
that contractor personnel performing private security functions comply
with the DoDI, including (1) accounting for Government-acquired and
contractor-furnished property and (2) reporting incidents in which a
weapon is discharged, personnel are attacked or killed or property is
destroyed, or active, lethal countermeasures are employed.
In FY 2010, DoD awarded 1,839 contracts for performance in Iraq and
Afghanistan. Of this total, 361, or 20 percent, were awarded to small
businesses. Firms performing private security functions in these areas
were already required to report the occurrence of incidences such as
those listed in the clause at DFARS 252.225-7039, Contractors
Performing Private Security Functions, but there was no consistency in
the manner of reporting or the individual to whom the report was to be
made. This DFARS interim rule and DoDI 3020.50 provide this consistency
and clarity and, in that sense, serve to relieve any burden on small
businesses.
The interim rule contains information collection requirements that
require the approval of the Office of Management and Budget under the
Paperwork Burden Act (44 U.S.C. chapter 35). There is an approved
information collection, OMB control number 0704-0460, Synchronized
Predeployment and Operational Tracker (SPOT) System, in the amount of
approximately 150,000 hours. DoD has determined that the currently
approved burden hours are sufficient to cover these requirements.
The rule does not duplicate, overlap, or conflict with any other
Federal rules. There are no alternatives that accomplish the stated
objectives of the applicable statutes.
DoD invites comments from small business concerns and other
interested parties on the expected impact of this rule on small
entities.
DoD will also consider comments from small entities concerning the
existing regulations in subparts affected by this rule in accordance
with 5 U.S.C. 610. Interested parties must submit such comments
separately and should cite 5 U.S.C. 610 (DFARS Case 2011-D023) in
correspondence.
IV. Paperwork Reduction Act
The rule contains information collection requirements that require
the approval of the Office of Management and Budget under the Paperwork
Reduction Act (44 U.S.C. chapter 35). The clause at DFARS 252.225-7039,
Contractors Performing Private Security Functions, requires contractors
to use the Synchronized Predeployment and Operational Tracker (SPOT)
system to (1) register personnel performing private security functions;
(2) register weapons to be carried by or available to be used by
personnel performing private security functions; (3) register armored
vehicles, helicopters, and other military vehicles operated by
contractors performing private security functions; and (4) report
certain incidents in which personnel performing private security
functions are involved. These requirements are covered by an approved
information collection, OMB control number 0704-0460, Synchronized
Predeployment and Operational Tracker (SPOT) System, in the amount of
approximately 150,000 hours.
DoD has determined that the currently approved burden hours are
sufficient to
[[Page 52135]]
cover these requirements. However, DoD will accept comments on how the
interim rule would impact either the burden or other aspects of the
approved information collection.
V. Determination To Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense that urgent and compelling reasons exist to publish an
interim rule without prior opportunity for public comment pursuant to
41 U.S.C. 1707 (formerly 41 U.S.C. 418b) and FAR 1.501-3(b). This
action is necessary because the requirements mandated for inclusion in
DoD contracts by the FY 2011 NDAA became effective immediately upon
enactment on January 7, 2011. Congress has expressed continuing concern
that regulations for the oversight of private security contractors are
not yet in place. The rule imposes new accountability requirements and
limitations on DoD contractors' use of private security personnel. It
is imperative that these requirements and limitations be included in
DoD contracts as soon as possible in order to ensure that all employees
of the Contractor who are responsible for personnel performing private
security functions under DoD contracts are briefed on and understand
their obligation to comply with all qualification, training, screening
(including, if applicable, thorough background checks), and security
requirements established by DoDI 3020.50, Private Security Contractors
Operating in Areas of Contingency Operations, Combat Operations, or
Other Significant Operations, as well as applicable laws and
regulations of the United States and the host country and applicable
treaties and international agreements regarding performance of private
security functions. However, DoD will consider public comments received
in response to this interim rule in the formation of the final rule.
List of Subjects in 48 CFR Parts 216, 225, and 252
Government procurement.
Ynette R. Shelkin,
Editor, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 216, 225, and 252 are amended as follows:
0
1. The authority citation for 48 CFR parts 216, 225, and 252 continues
to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 216--TYPES OF CONTRACTS
216.405-270 [Redesignated as 216.405-2-70]
0
2. Redesignate section 216.405-270 as 216.405-2-70.
0
3. Add section 216.405-2-71 to read as follows:
216.405-2-71 Award fee reduction or denial for failure to comply with
requirements relating to performance of private security functions.
(a) In accordance with section 862 of the National Defense
Authorization Act for Fiscal Year 2008, as amended, the contracting
officer shall include in any award-fee plan a requirement to review
contractor compliance with, or violation of, applicable requirements of
the contract with regard to the performance of private security
functions in an area of contingency operations, complex contingency
operations, or other military operations or exercises that are
designated by the combatant commander (see 225.370).
(b) In evaluating the contractor's performance under a contract
that includes the clause at 252.225-7039, Contractors Performing
Private Security Functions, the contracting officer shall consider
reducing or denying award fees for a period if the contractor fails to
comply with the requirements of the clause during such period. The
contracting officer's evaluation also shall consider recovering all or
part of award fees previously paid for such period.
PART 225--FOREIGN ACQUISITION
0
4. Add sections 225.370 through 225.370-6 to subpart 225.3 to read as
follows:
Subpart 225.3--Contracts Performed Outside the United States
Sec.
* * * * *
225.370 Contractors performing private security functions.
225.370-1 Scope.
225.370-2 Applicability.
225.370-3 Definitions.
225.370-4 Policy.
225.370-5 Remedies.
225.370-6 Contract clause.
225.370 Contractors performing private security functions.
225.370-1 Scope.
This section prescribes policy for implementing section 862 of the
National Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110-
181), as amended by section 853 of the National Defense Authorization
Act for Fiscal Year 2009 (Pub. L. 110-417) and sections 831 and 832 of
the National Defense Authorization Act for Fiscal Year 2011 (Pub. L.
111-383).
225.370-2 Applicability.
This section applies to acquisitions for supplies and services that
require the performance of private security functions in areas of--
(a) Contingency operations (see FAR 2.101);
(b) Complex contingency operations; or
(c) Other military operations or exercises that are designated by
the combatant commander.
225.370-3 Definitions.
As used in this section--
Complex contingency operations means large-scale peace operations
(or elements thereof) conducted by a combination of military forces and
nonmilitary organizations that involve one or more of the elements of
peace operations that include one or more elements of other types of
operations, such as foreign humanitarian assistance, nation assistance,
support to insurgency, or support to counterinsurgency.
Private security functions means activities engaged in by a
contractor, including--
(1) Guarding of personnel, facilities, designated sites, or
property of a Federal agency, the contractor or subcontractor, or a
third party; and
(2) Any other activity for which personnel are required to carry
weapons in the performance of their duties.
225.370-4 Policy.
(a) The policy, responsibilities, procedures, accountability,
training, equipping, and conduct of personnel performing private
security functions in designated areas are addressed in Department of
Defense Instruction (DoDI) 3020.50, Private Security Contractors
Operating in Contingency Operations, Combat Operations, or Other
Significant Military Operations, at https://www.dtic.mil/whs/directives/corres/pdf/302050p.pdf.
(b) The requirements of this section apply to contractors that
employ private security contractors in areas of contingency operations,
complex contingency operations, or other military operations or
exercises that are designated by the combatant commander, whether the
contract is for the performance of private security functions or other
supplies or services.
(c) DoD requires contractors described in paragraph (b) above to--
(1) Ensure that all employees of the contractor who are responsible
for
[[Page 52136]]
performing private security functions comply with orders, directives,
and instructions to contractors performing private security functions
for--
(i) Registering, processing, accounting for, managing, overseeing,
and keeping appropriate records of personnel performing private
security functions. This includes ensuring the issuance, maintenance,
and return of Personal Identity Verification credentials in accordance
with FAR clause 52.204-9, Personal Identity Verification of Contractor
Personnel, and DoD procedures, including revocation of any physical
and/or logistical access (as defined by Homeland Security Presidential
Directive (HSPD-12)) granted to such personnel;
(ii) Authorizing and accounting for weapons to be carried by or
available to be used by personnel performing private security
functions;
(A) All weapons must be registered in the Synchronized
Predeployment Operational Tracker (SPOT) materiel tracking system.
(B) In addition, all weapons that are Government-furnished property
must be assigned a unique identifier in accordance with the clauses at
252.211-7003 and 252.245.7001 and physically marked in accordance with
MIL-STD 130 (current version) and DoD directives and instructions. The
items must be registered in the DoD Item Unique Identification (IUID)
Registry (https://www.bpn.gov/iuid/);
(iii) Registering and identifying armored vehicles, helicopters,
and other military vehicles operated by contractors performing private
security functions;
(A) All armored vehicles, helicopters, and other military vehicles
must be registered in SPOT.
(B) In addition, all armored vehicles, helicopters, and other
military vehicles that are Government-furnished property must be
assigned a unique identifier in accordance with the clauses at 252.211-
7003 and 252.245.7001 and physically marked in accordance with MIL-STD
130 (current version) and DoD directives and instructions. The items
must be registered in the DoD IUID Registry; and
(iv) Reporting incidents in which--
(A) A weapon is discharged by personnel performing private security
functions;
(B) Personnel performing private security functions are attacked,
killed, or injured;
(C) Persons are killed or injured or property is destroyed as a
result of conduct by contractor personnel;
(D) A weapon is discharged against personnel performing private
security functions or personnel performing such functions believe a
weapon was so discharged; or
(E) Active, non-lethal countermeasures (other than the discharge of
a weapon) are employed by personnel performing private security
functions in response to a perceived immediate threat;
(2) Ensure that all employees of the contractor who are responsible
for personnel performing private security functions are briefed on and
understand their obligation to comply with--
(i) Qualification, training, screening (including, if applicable,
thorough background checks), and security requirements established by
DoDI 3020.50;
(ii) Applicable laws and regulations of the United States and the
host country and applicable treaties and international agreements
regarding performance of the functions of the private security
contractors;
(iii) Orders, directives, and instructions issued by the applicable
commander of a combatant command relating to weapons, equipment, force
protection, security, health, safety, or relations and interaction with
locals; and
(iv) Rules on the use of force issued by the applicable commander
of a combatant command for personnel performing private security
functions; and
(3) Cooperate with any Government-authorized investigation by
providing access to employees performing private security functions and
relevant information in the possession of the contractor.
225.370-5 Remedies.
(a) In addition to other remedies available to the Government--
(1) The contracting officer may direct the contractor, at its own
expense, to remove and replace any contractor personnel who fail to
comply with or violate applicable requirements. Such action may be
taken at the Government's discretion without prejudice to its rights
under any other contract provision, including termination for default.
Required contractor actions include--
(i) Ensuring the return of personal identity verification
credentials;
(ii) Ensuring the return of any other equipment issued to the
employee under the contract; and
(iii) Revocation of any physical and/or logistical access granted
to such personnel;
(2) The contracting officer shall include the contractor's failure
to comply with the requirements of this subpart in appropriate
databases of past performance and consider any such failure in any
responsibility determination or evaluation of past performance;
(3) In the case of award-fee contracts, the contracting officer
shall consider a contractor's failure to comply with the requirements
of this subpart in the evaluation of the contractor's performance
during the relevant evaluation period, and may treat such failure as a
basis for reducing or denying award fees for such period or for
recovering all or part of award fees previously paid for such period;
and
(4) If the contractor fails to comply with the Government's
direction to remove or replace personnel (see paragraph (a)(1) of this
subsection), and such failure to comply is severe, prolonged, or
repeated, the contracting officer may terminate the contract for
default.
(b) If the performance failures are significant or repeated, the
contracting officer shall refer the contractor to the appropriate
suspension and debarment official.
225.370-6 Contract clause.
Use the clause at 252.225-7039, Contractors Performing Private
Security Functions, in all solicitations and contracts to be performed
in areas of--
(a) Contingency operations;
(b) Complex contingency operations; or
(c) Other military operations or exercises, when designated by the
combatant commander.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
5. Amend section 252.212-7001 as follows:
0
a. Revise the clause date to read ``(AUG 2011)'';
0
b. Redesignate paragraphs (b)(16) through (b)(27) as (b)(17) through
(b)(28);
0
c. Add new paragraph (b)(16); and
0
d. Revise paragraph (c).
252.212-7001 Contract Terms and Conditions Required to Implement
Statutes or Executive Orders Applicable to Defense Acquisitions of
Commercial Items.
* * * * *
(b) * * *
(16) ---- 252.225-7039, Contractors Performing Private Security
Functions (AUG 2011) (Section 862 of Pub. L. 110-181, as amended by
section 853 of Pub. L. 110-417 and sections 831 and 832 of Pub. L. 111-
383).
* * * * *
(c) In addition to the clauses listed in paragraph (e) of the
Contract Terms and Conditions Required to Implement
[[Page 52137]]
Statutes or Executive Orders--Commercial Items clause of this contract
(FAR 52.212-5), the Contractor shall include the terms of the following
clauses, if applicable, in subcontracts for commercial items or
commercial components, awarded at any tier under this contract:
(1) 252.225-7039, Contractors Performing Private Security Functions
(AUG 2011) (Section 862 of Pub. L. 110-181, as amended by section 853
of Pub. L. 110-417 and sections 831 and 832 of Pub. L. 111-383).
(2) 252.237-7010, Prohibition on Interrogation of Detainees by
Contractor Personnel (NOV 2010) (Section 1038 of Pub. L. 111-84).
(3) 252.237-7019, Training for Contractor Personnel Interacting
with Detainees (SEP 2006) (Section 1092 of Pub. L. 108-375).
(4) 252.247-7003, Pass-Through of Motor Carrier Fuel Surcharge
Adjustment to the Cost Bearer (SEP 2010) (Section 884 of Pub. L. 110-
417).
(5) 252.247-7023, Transportation of Supplies by Sea (MAY 2002) (10
U.S.C. 2631).
(6) 252.247-7024, Notification of Transportation of Supplies by Sea
(MAR 2000) (10 U.S.C. 2631).
* * * * *
0
6. Add section 252.225-7039 to read as follows:
252.225-7039 Contractors Performing Private Security Functions.
As prescribed in 225.370-6, insert the following clause:
CONTRACTORS PERFORMING PRIVATE SECURITY FUNCTIONS (AUG 2011)
(a) Definition.
Private security functions means activities engaged in by a
contractor, including--
(i) Guarding of personnel, facilities, designated sites, or
property of a Federal agency, the contractor or subcontractor, or a
third party; or
(ii) Any other activity for which personnel are required to
carry weapons in the performance of their duties.
(b) Requirements. The Contractor is required to--
(1) Ensure that all employees of the Contractor who are
responsible for performing private security functions under this
contract comply with any orders, directives, and instructions to
Contractors performing private security functions that are
identified in the contract for--
(i) Registering, processing, accounting for, managing,
overseeing, and keeping appropriate records of personnel performing
private security functions. This includes ensuring the issuance,
maintenance, and return of Personal Identity Verification
credentials in accordance with FAR 52.204-19, Personnel Identity
Verification of Contractor Personnel, and DoD procedures, including
revocation of any physical and/or logistical access (as defined by
Homeland Security Presidential Directive (HSPD-12)) granted to such
personnel;
(ii) Authorizing and accounting for weapons to be carried by or
available to be used by personnel performing private security
functions;
(A) All weapons must be registered in the Synchronized
Predeployment Operational Tracker (SPOT) materiel tracking system.
(B) In addition, all weapons that are Government-furnished
property must be assigned a unique identifier in accordance with the
clauses at DFARS 252.211-7003, Item Identification and Valuation,
and DFARS 252.245.7001, Tagging, Labeling, and Marking of
Government-Furnished Property, and physically marked in accordance
with MIL-STD 130 (current version) and DoD directives and
instructions. The items must be registered in the DoD Item Unique
Identification (IUID) Registry (https://www.bpn.gov/iuid/);
(iii) Registering and identifying armored vehicles, helicopters,
and other military vehicles operated by Contractors performing
private security functions;
(A) All armored vehicles, helicopters, and other military
vehicles must be registered in SPOT.
(B) In addition, all armored vehicles, helicopters, and other
military vehicles that are Government-furnished property must be
assigned a unique identifier in accordance with the clauses at DFARS
252.211-7003 and DFARS 252.245.7001 and physically marked in
accordance with MIL-STD 130 (current version) and DoD directives and
instructions. The items must be registered in the DoD IUID Registry
(https://www.bpn.gov/iuid/); and
(iv) Reporting incidents in which--
(A) A weapon is discharged by personnel performing private
security functions;
(B) Personnel performing private security functions are
attacked, killed, or injured;
(C) Persons are killed or injured or property is destroyed as a
result of conduct by contractor personnel;
(D) A weapon is discharged against personnel performing private
security functions or personnel performing such functions believe a
weapon was so discharged; or
(E) Active, non-lethal countermeasures (other than the discharge
of a weapon) are employed by personnel performing private security
functions in response to a perceived immediate threat;
(2) Ensure that all employees of the Contractor who are
responsible for personnel performing private security functions
under this contract are briefed on and understand their obligation
to comply with--
(i) Qualification, training, screening (including, if
applicable, thorough background checks), and security requirements
established by DoDI 3020.50, Private Security Contractors Operating
in Areas of Contingency Operations, Combat Operations, or Other
Significant Operations, at https://www.dtic.mil/whs/directives/corres/pdf;
(ii) Applicable laws and regulations of the United States and
the host country and applicable treaties and international
agreements regarding performance of private security functions;
(iii) Orders, directives, and instructions issued by the
applicable commander of a combatant command relating to weapons,
equipment, force protection, security, health, safety, or relations
and interaction with locals; and
(iv) Rules on the use of force issued by the applicable
commander of a combatant command for personnel performing private
security functions; and
(3) Cooperate with any Government-authorized investigation by
providing access to employees performing private security functions
and relevant information in the possession of the Contractor
regarding the incident concerned.
(c) Remedies. In addition to other remedies available to the
Government--
(1) The Contracting Officer may direct the Contractor, at its
own expense, to remove and replace any Contractor personnel who fail
to comply with or violate applicable requirements of this contract.
Such action may be taken at the Government's discretion without
prejudice to its rights under any other provision of this contract,
including termination for default. Required Contractor actions
include--
(i) Ensuring the return of personal identity verification
credentials;
(ii) Ensuring the return of other equipment issued to the
employee under the contract; and
(iii) Revocation of any physical and/or logistical access
granted to such personnel;
(2) The Contractor's failure to comply with the requirements of
this clause will be included in appropriate databases of past
performance and may be considered in any responsibility
determination or evaluation of past performance;
(3) If this is an award-fee contract, the Contractor's failure
to comply with the requirements of this clause shall be considered
in the evaluation of the Contractor's performance during the
relevant evaluation period, and the Contracting Officer may treat
such failure to comply as a basis for reducing or denying award fees
for such period or for recovering all or part of award fees
previously paid for such period; and
(4) This contract may be terminated for default if the
Contractor fails to comply with the requirements of paragraph (b) of
this clause or, if directed by the Contracting Officer, fails to
remove or replace, at its own expense, any of its personnel who
violate the requirements of paragraph (b) of this clause.
(d) Rule of construction. The duty of the Contractor to comply
with the requirements of this clause shall not be reduced or
diminished by the failure of a higher- or lower-tier Contractor to
comply with the clause requirements or by a failure of the
contracting activity to provide required oversight.
(e) Subcontracts. The Contractor shall include the substance of
this clause, including this paragraph (e), in all subcontracts that
will be performed in areas of contingency operations, complex
contingency operations, or other military operations or exercises
designated by the Combatant Commander.
(End of clause)
[[Page 52138]]
0
7. Revise section 252.244-7000 to read as follows:
252.244-7000 Subcontracts for Commercial Items and Commercial
Components (DoD Contracts).
As prescribed in 244.403, use the following clause:
SUBCONTRACTS FOR COMMERCIAL ITEMS AND COMMERCIAL COMPONENTS (DOD
CONTRACTS) (AUG 2011)
In addition to the clauses listed in paragraph (c) of the
Subcontracts for Commercial Items clause of this contract (Federal
Acquisition Regulation 52.244-6), the Contractor shall include the
terms of the following clauses, if applicable, in subcontracts for
commercial items or commercial components, awarded at any tier under
this contract:
(a) 252.225-7009 Restriction on Acquisition of Certain Articles
Containing Specialty Metals (JAN 2011) (10 U.S.C. 2533b).
(b) 252.225-7039, Contractors Performing Private Security
Functions (AUG 2011) (Section 862 of Pub. L. 110-181, as amended by
section 853 of Pub. L. 110-417 and sections 831 and 832 of Pub. L.
111-383).
(c) 252.236-7013 Requirement for Competition Opportunity for
American Steel Producers, Fabricators, and Manufacturers (JAN 2009)
(Pub. L. 110-329, Division E, Section 108).
(d) 252.237-7010 Prohibition on Interrogation of Detainees by
Contractor Personnel (NOV 2010) (Section 1038 of Pub. L. 111-84).
(e) 252.237-7019 Training for Contractor Personnel Interacting
with Detainees (SEP 2006) (Section 1092 of Pub. L. 108-375).
(f) 252.246-7003 Notification of Potential Safety Issues (JAN
2007).
(g) 252.247-7023 Transportation of Supplies by Sea (MAY 2002)
(10 U.S.C. 2631).
(h) 252.247-7024 Notification of Transportation of Supplies by
Sea (MAR 2000) (10 U.S.C. 2631).
(End of clause)
[FR Doc. 2011-20528 Filed 8-18-11; 8:45 am]
BILLING CODE 5001-08-P
