Federal Acquisition Regulation; Contractors Performing Private Security Functions Outside the United States, 43039-43044 [2012-17477]

Download as PDF Federal Register / Vol. 77, No. 141 / Monday, July 23, 2012 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS EPA’s role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this proposed action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action: • Is not a ‘‘significant regulatory action’’ subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993); • Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.); • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); • Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4); • Does not have Federalism implications as specified in Executive Order 13132 (64 F43255, August 10, 1999); • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); • Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); • Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and • Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, this proposed rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law. List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Intergovernmental relations, Nitrogen oxides, Ozone, Particulate matter, Reporting and recordkeeping requirements. Authority: 42 U.S.C. 7401 et seq. VerDate Mar<15>2010 16:36 Jul 20, 2012 Jkt 226001 Dated: July 12, 2012. A. Stanley Meiburg, Acting Regional Administrator, Region 4. [FR Doc. 2012–17893 Filed 7–20–12; 8:45 am] BILLING CODE 6560–50–P DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Parts 1, 25, and 52 [FAR Case 2011–029; Docket No. 2011– 0029; Sequence 1] RIN 9000–AM20 43039 Street NE., 7th Floor, Washington, DC 20417. Instructions: Please submit comments only and cite FAR case 2011–029 in all correspondence related to this case. All comments received will be posted without change to http:// www.regulations.gov, including any personal and/or business confidential information provided. FOR FURTHER INFORMATION CONTACT: Mr. Michael O. Jackson, Procurement Analyst, at 202–208–4949 for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at 202–501–4755. Please cite FAR case 2011–029. SUPPLEMENTARY INFORMATION: I. Background Federal Acquisition Regulation; Contractors Performing Private Security Functions Outside the United States Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). ACTION: Proposed rule. AGENCY: The DoD, GSA, and NASA are proposing to amend the Federal Acquisition Regulation (FAR) to implement Governmentwide requirements in National Defense Authorization Acts that establish minimum processes and requirements for the selection, accountability, training, equipping, and conduct of personnel performing private security functions outside the United States. DATES: Interested parties should submit written comments to the Regulatory Secretariat on or before September 21, 2012 to be considered in the formulation of a final rule. ADDRESSES: Submit comments identified by FAR case 2011–029 by any of the following methods: • Regulations.gov: http:// www.regulations.gov. Submit comments via the Federal eRulemaking portal by searching for ‘‘FAR Case 2011–029’’ under the heading ‘‘Comment or Submission’’. Select the link ‘‘Send a Comment or Submission’’ that corresponds with FAR Case 2011–029. Follow the instructions provided to complete the ‘‘Public Comment and Submission Form’’. Please include your name, company name (if any), and ‘‘FAR Case 2011– 029’’ on your attached document. • Fax: 202–501–4067. • Mail: General Services Administration, Regulatory Secretariat (MVCB), Attn: Hada Flowers, 1275 First SUMMARY: PO 00000 Frm 00025 Fmt 4702 Sfmt 4702 The National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2008 (Pub. L. 110–181, enacted January 28, 2008), section 862, entitled ‘‘Contractors Performing Private Security Functions in Areas of Combat 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). See 10 U.S.C. 2302 Note. The statute requires (1) the establishment of Governmentwide policies and (2) FAR coverage implementing the Governmentwide policies specified in the statutes and the resulting Governmentwide policy document. This proposed rule is focused solely on providing implementing contractual language and a contract clause, as mandated by statute. Agencies are reminded that they may further supplement the applicability of these requirements beyond those included in this rule in accordance with FAR subpart 1.3, Agency Acquisition Regulations. While section 862 of the 2008 NDAA required standardization of rules for private security contractors that are performing in designated areas of combat operations or other significant military operations, the underlying Governmentwide instruction was the responsibility of the Secretary of Defense, in coordination with the Secretary of State. The resultant regulation was published as a final rule at 32 CFR part 159, entitled ‘‘Private Security Contractors Operating in Contingency Operations, Combat Operations or Other Significant Military Operations,’’ on August 11, 2011 (see 76 FR 49650) (or, see the corresponding Department of Defense Instruction (DoDI) 3020.50 at http://www.dtic.mil/ whs/directives/corres/pdf/302050p.pdf). E:\FR\FM\23JYP1.SGM 23JYP1 tkelley on DSK3SPTVN1PROD with PROPOSALS 43040 Federal Register / Vol. 77, No. 141 / Monday, July 23, 2012 / Proposed Rules The regulations implementing the referenced statutory provisions for contracts are proposed to be located in FAR subpart 25.3, entitled ‘‘Contracts Performed Outside the United States.’’ The coverage implementing section 862, as amended, is proposed to be located at a new FAR section 25.302. 32 CFR part 159 provides two broad exemptions from this coverage, one for contracts entered into by elements of the intelligence community in support of intelligence activities (the source is paragraph (h)(1) of section 862, as amended), and a second for temporary arrangements entered into by non-DoD contractors for the performance of private security functions by individual indigenous personnel not affiliated with a local or expatriate security company (the source is 32 CFR 159.3, section (3) of the definition of ‘‘covered contract’’). Further, 32 CFR part 159 applies differently to DoD and non-DoD agencies. It applies to DoD contracts performed in areas of contingency operations outside the United States. It applies to DoD and non-DoD contracts performed in areas of combat operations as designated by the Secretary of Defense. It applies to DoD contracts performed in areas of other significant military operations as designated by the Secretary of Defense and to non-DoD contracts performed in areas of other significant military operations as designated by the Secretary of Defense and agreed to by the Secretary of State. FAR 2.101, Definitions, currently provides the definition of ‘‘contingency operation’’ from 10 U.S.C. 101(a)(13). Definitions in this proposed rule include ‘‘private security functions,’’ ‘‘other significant military operations,’’ and ‘‘area of combat operations’’ from 32 CFR 159.3 and the statute. This coverage would not apply to the performance of private security functions within the U.S. It would not apply outside the U.S. in areas that are not (a) combat operations, (b) contingency operations, or (c) other significant military operations, as designated by the Secretary of Defense and agreed to by the Secretary of State. In addition, the proposed FAR coverage would apply to the performance of private security functions, regardless of whether the performance of the security functions are the primary function of the contract or ancillary functions. 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 VerDate Mar<15>2010 16:36 Jul 20, 2012 Jkt 226001 contractor, the requirements of the clause proposed at FAR 52.225–XX, Contractors Performing Private Security Functions Outside the United States, are applicable. As a further example, the same contractor, if delivering construction materials to a base in Germany would not be governed, at this time, by the requirements and limitations of FAR 52.225–XX because Germany is not a designated area. This is further clarified by the proposed FAR 25.302–4, Policy. The proposed FAR 25.302–4 subsection would implement the relevant policy document, 32 CFR part 159, and assign contractor responsibilities for the selection, accountability, training, equipping, and conduct of personnel performing private security functions under contracts in the covered areas. It also would assign responsibilities and establish procedures for incident reporting, use of and accountability for equipment, and rules for the use of force. The law includes specific remedies for violations of the responsibilities and procedures in the law. These are addressed at FAR 25.302–5, Remedies. Without impinging on the Government’s usual contractual remedies (e.g., termination for default), the proposed rule would allow the Government, at its discretion, to direct the contractor to remove or replace any personnel who fail to comply with, or violate, applicable requirements of the clause at FAR 52.225–XX. Such corrective actions would be required to be taken at the contractor’s own expense and without prejudice to any other contractual rights. The proposed rule also includes 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’s performance failures are severe, prolonged, or repeated, the statute requires the contracting officer to refer the matter to the appropriate suspension and debarment official. The clause prescription, at FAR 25.302–6, proposes to closely follow the applicability coverage at FAR 25.302–2. PO 00000 Frm 00026 Fmt 4702 Sfmt 4702 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 The changes may 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. An Initial Regulatory Flexibility Analysis (IRFA) has been prepared and is summarized as follows: DoD, GSA, and NASA are proposing to amend the Federal Acquisition Regulation (FAR) to implement section 862 of the NDAA for 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, together with the implementing Governmentwide regulations required by the statute (32 CFR part 159, published at 76 FR 49650 on August 11, 2011) add requirements and limitations for contractors performing private security functions in areas of contingency operations, combat operations, or other military operations as designated by the Secretary of Defense, upon agreement of the Secretaries of Defense and State. These requirements are that contractors performing in areas such as Iraq and Afghanistan ensure that their personnel performing private security functions comply with 32 CFR part 159, 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. At this time, the only statistics available are from DoD. Other agencies are beginning to award contracts for performance in areas subject to the statute as U.S. troops are recalled. 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 under DoD contracts in these areas were already required to register their private security personnel, weapons, and certain vehicles under a web-based system (SPOT), and contractors for the Department of State and the U.S. Agency for International E:\FR\FM\23JYP1.SGM 23JYP1 Federal Register / Vol. 77, No. 141 / Monday, July 23, 2012 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS Development (AID) have been using SPOT in Iraq and Afghanistan. The requirement to report the occurrence of certain incidences is on an as-needed basis and is minimal. As DoD personnel exit the areas of current contingency operations, e.g., Iraq and Afghanistan, support requirements are being transitioned to other Government agencies. The expected total number of contracts requiring the use of private security contractors is approximately one half of the DoD level, but the assumption was made that 20 percent of these contracts would continue to be awarded to small businesses. The impact on small business subcontractors will be minor, for several reasons. Not all subcontracts involve the performance of private security functions, in which case the clause does not flow down to the subcontract. Therefore, in these situations, there is no impact on small business subcontractors. Further, most subcontracts that require the performance of private security functions in the areas of Iraq and Afghanistan are being awarded to firms based in those countries. Such firms are, by definition, not small businesses because they are not U.S. firms. In the small proportion of situations where a subcontractor is both a U.S. small business and is performing private security functions, the costs of compliance will be included in the proposed and negotiated subcontract cost. At this time the clause would only apply to the Department of Defense, as the Secretary of Defense has made no designations of area (see FAR 25.302–2(b)). The publication of 32 CFR part 159 will provide consistency in reporting requirements and accountability for private security personnel and their weapons, thus simplifying compliance for small and large businesses. While DoD contractors and subcontractors currently are required by another clause to register equipment and personnel using the DoD’s Synchronized Predeployment and Operational Tracker (SPOT) System, there are, at present, no reporting systems that have been developed by non-DoD agencies. An information collection request has been prepared and submitted to the Office of Management and Budget with this proposed rule. The proposed rule does not unnecessarily overlap or conflict with existing coverage at Defense Federal Acquisition Regulation Supplement (DFARS) 225.370. However, the DFARS coverage will be amended to delete duplicative text when a final rule is published for this FAR case. There are no alternatives that would further decrease the already minimal economic impact of the statute’s implementation. The Regulatory Secretariat has submitted a copy of the IRFA to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the IRFA may be obtained from the Regulatory Secretariat. The Councils will consider comments from small entities concerning the affected FAR parts 1, 25, and 52 in accordance with 5 U.S.C. 610. Comments must be submitted separately and should cite 5 VerDate Mar<15>2010 16:36 Jul 20, 2012 Jkt 226001 U.S.C 601, et seq. (FAR case 2011–029), in correspondence. IV. Paperwork Reduction Act The Paperwork Reduction Act (44 U.S.C chapter 35) applies. The proposed rule contains information collection requirements. Accordingly, the Regulatory Secretariat submitted a request for approval of a new information collection requirement for non-DoD agencies to the Office of Management and Budget (OMB). OMB has assigned the number 9000–0184, entitled ‘‘Contractors Performing Private Security Functions Outside the United States,’’ for this new information collection request. DoD’s information collection has been approved previously under OMB Control Number 0704–0460, Synchronized Predeployment and Operation Tracker (SPOT) System. A. Public reporting burden for this collection of information is estimated to average 0.109 hours per response, including the time for identifying and inputting information. The annual reporting burden is estimated as follows: Respondents: 920. Responses per respondent: 5. Total annual responses: 4,600. Preparation hours per response: 0.109 hours. Total response Burden Hours: 501. B. Request for Comments Regarding Paperwork Burden. Submit comments, including suggestions for reducing this burden, not later than September 21, 2012 to: FAR Desk Officer, OMB, Room 10102, NEOB, Washington, DC 20503, and a copy to the General Services Administration, Regulatory Secretariat Division (MVCB), ATTN: Hada Flowers, 1275 First Street NE., 7th Floor, Washington, DC 20417. Public comments are particularly invited on: whether this collection of information is necessary for the proper performance of functions of the FAR, and will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology. Requesters may obtain a copy of the supporting statement from the General Services Administration, Regulatory Secretariat (MVCB), Attn: Hada Flowers, 1275 First Street NE., 7th floor, PO 00000 Frm 00027 Fmt 4702 Sfmt 4702 43041 Washington, DC 20417. Please cite OMB Control Number 9000–0184, Contractors Performing Private Security Functions Outside the United States, in all correspondence. List of Subjects in 48 CFR Parts 1, 25, and 52 Government procurement. Dated: July 12, 2012. Laura Auletta, Director, Office of Governmentwide Acquisition Policy, Office of Acquisition Policy, Office of Governmentwide Policy. Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 1, 25, and 52 as set forth below: 1. The authority citation for 48 CFR parts 1, 25, and 52 is revised to read as follows: Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113. PART 1—FEDERAL ACQUISITION REGULATIONS SYSTEM 1.106 [Amended] 2. Amend section 1.106, in the table following the introductory text, by adding in numerical sequence, FAR segment ‘‘52.225–XX’’ and its corresponding OMB Control No. ‘‘9000– 0184’’. PART 25—FOREIGN ACQUISITION 3. Add subpart 25.302 to read as follows: Subpart 25.302 Contractors Performing Private Security Functions Outside the United States Sec. 25.302–1 Scope. 25.302–2 Applicability. 25.302–3 Definitions. 25.302–4 Policy. 25.302–5 Remedies. 25.302–6 Contract clause. Subpart 25.302 Contractors Performing Private Security Functions Outside the United States 25.302–1 Scope. This section prescribes policy for implementing section 862 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2008 (Pub. L. 110–181), as amended by section 853 of the NDAA for FY 2009 (Pub. L. 110– 417), and sections 831 and 832 of the NDAA for FY 2011 (Pub. L. 111–383) (see 10 U.S.C. 2302 Note). 25.302–2 Applicability. (a) DoD: This section applies to acquisitions by Department of Defense components for supplies and services under a contract that requires performance— E:\FR\FM\23JYP1.SGM 23JYP1 43042 Federal Register / Vol. 77, No. 141 / Monday, July 23, 2012 / Proposed Rules (1) During contingency operations outside the United States; (2) In an area of combat operations as designated by the Secretary of Defense; or (3) In an area of other significant military operations as designated by the Secretary of Defense. (b) Non-DoD agencies: This section applies to acquisitions by non-DoD agencies for supplies and services under a contract that requires performance— (1) In an area of combat operations as designated by the Secretary of Defense; or (2) In an area of other significant military operations as designated by the Secretary of Defense, and only upon agreement of the Secretary of Defense and the Secretary of State. (c) These designations can be found at http://www.acq.osd.mil/dpap/pacc/cc/ designated_areas_of_other_significant_ military_operations.html and http:// www.acq.osd.mil/dpap/pacc/cc/ designated_areas_of_combat_ operations.html. (d) When the applicability requirements of this subsection are met, contractors and subcontractors must comply with 32 CFR part 159, whether the contract is for the performance of private security functions as a primary deliverable or the deliverable is other supplies or services and the provision of private security functions is ancillary. (e) The requirements of this section 25.302 shall not apply to contracts entered into by elements of the intelligence community in support of intelligence activities, and temporary arrangements entered into by non-DoD contractors for the performance of private security functions by individual indigenous personnel not affiliated with a local or expatriate security company; these temporary arrangements must still comply with local law. tkelley on DSK3SPTVN1PROD with PROPOSALS 25.302–3 Definitions. As used in this section— Area of combat operations means an area of operations designated as such by the Secretary of Defense when enhanced coordination of private security contractors working for Government agencies is required. Other significant military operations means activities, other than combat operations, as part of a contingency operation outside the United States that is carried out by United States Armed Forces in an uncontrolled or unpredictable high-threat environment where personnel performing security functions may be called upon to use deadly force (see 25.302–2(b)(2)). VerDate Mar<15>2010 16:36 Jul 20, 2012 Jkt 226001 Private security functions means activities engaged in by a contractor, as follows— (1) Guarding of personnel, facilities, designated sites, or property of a Federal agency, the contractor or subcontractor, or a third party; or (2) Any other activity for which personnel are required to carry weapons in the performance of their duties in accordance with the terms of the contract. 25.302–4 Policy. (a) General. (1) The policy, responsibilities, procedures, accountability, training, equipping, and conduct of personnel performing private security functions in designated areas are addressed at 32 CFR part 159, entitled ‘‘Private Security Contractors (PSCs) Operating in Contingency Operations, Combat Operations, or Other Significant Military Operations.’’ Contractor responsibilities include ensuring that employees are aware of, and comply with, relevant orders, directives, and instructions; keeping appropriate personnel records; accounting for weapons; registering and identifying armored vehicles, helicopters, and other military vehicles; and reporting specified incidents in which personnel performing private security functions under a contract are involved. (2) In addition, contractors are required to cooperate with any Government-authorized investigation into incidents reported pursuant to paragraph (b)(3) of the clause at 52.225– XX, Contractors Performing Private Security Functions Outside the United States, by providing access to employees performing private security functions and relevant information in the possession of the contractor regarding the incident concerned. (b) Implementing guidance. In accordance with 32 CFR part 159— (1) Geographic combatant commanders will provide DoD private security contractors with guidance and procedures for the operational environment in their area of responsibility; and (2) In a designated area of combat operations, or areas of other significant military operations, as designated by the Secretary of Defense and only upon agreement of the Secretary of Defense and the Secretary of State, the relevant Chief of Mission will provide implementing instructions for non-DoD private security contractors and their personnel consistent with the standards set forth by the geographic combatant commander. In a designated area of combat operations, 32 CFR 159.4(c) PO 00000 Frm 00028 Fmt 4702 Sfmt 4702 gives the Chief of Mission the option of instructing non-DoD private security contractors and their personnel to follow the guidance and procedures of the geographic Combatant Commander and/or a sub-unified commander or joint force commander where specifically authorized by the combatant commander to do so and notice of that authorization is provided to non-DoD agencies. 25.302–5 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 performing private security functions 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, e.g., termination for default; (2) The contracting officer shall include the contractor’s failure to comply with the requirements of this section in appropriate databases of past performance and consider any such failure in any responsibility determination or evaluation of past performance; and (3) In the case of award-fee contracts, the contracting officer shall consider a contractor’s failure to comply with the requirements of this subsection 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. (b) If the performance failures are severe, prolonged, or repeated, the contracting officer shall refer the matter to the appropriate suspension and debarment official. 25.302–6 Contract clause. (a) Use the clause at 52.225–XX, Contractors Performing Private Security Functions Outside the United States, in the following solicitations and contracts: (1) A DoD contract for performance of services and/or delivery of supplies in an area of: (i) Contingency operations outside the United States; (ii) Combat operations, as designated by the Secretary of Defense; or (iii) Other significant military operations, as designated by the Secretary of Defense only upon agreement of the Secretary of Defense and the Secretary of State. E:\FR\FM\23JYP1.SGM 23JYP1 Federal Register / Vol. 77, No. 141 / Monday, July 23, 2012 / Proposed Rules (2) A contract of a non-DoD agency for performance of services and/or delivery of supplies in: (i) An area of combat operations, as designated by the Secretary of Defense; or (ii) An area of other significant military operations, as designated by the Secretary of Defense and only upon agreement of the Secretary of Defense and the Secretary of State. (b) The clause is not required to be used for: (1) Contracts entered into by elements of the intelligence community in support of intelligence activities; or (2) Temporary arrangements entered into by non-DoD contractors for the performance of private security functions by individual indigenous personnel not affiliated with a local or expatriate security company. PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 4. Amend section 52.212–5 by— a. Revising the date of clause; b. Redesignating paragraphs (b)(43) through (51) as paragraphs (b)(44) through (52), respectively; c. Adding a new paragraph (b)(43); d. Redesignating paragraphs (e)(1)(xiii) and (xiv) as paragraphs (e)(1)(xiv) and (xv), respectively; and e. Adding a new paragraph (e)(1)(xiii). The revised and added text reads as follows: 52.212–5 Contract Terms and Conditions Required To Implement Statutes or Executive Orders—Commercial Items. * * * * * Contract Terms and Conditions Required To Implement Statutes or Executive Orders—Commercial Items (DATE) * * * * * (b) * * * (43) 52.225–XX, Contractors Performing Private Security Functions Outside the United States (DATE) (Section 862, as amended, of the National Defense Authorization Act for Fiscal Year 2008; 10 U.S.C. 2302 Note). tkelley on DSK3SPTVN1PROD with PROPOSALS * * * * * (e)(1) * * * (i) * * * (xiii) 52.225–XX, Contractors Performing Private Security Functions Outside the United States (DATE) (Section 862, as amended, of the National Defense Authorization Act for Fiscal Year 2008; 10 U.S.C. 2302 Note). * * * * * 5. Add section 52.225–XX to read as follows: VerDate Mar<15>2010 16:36 Jul 20, 2012 Jkt 226001 52.225–XX Contractors Performing Private Security Functions Outside the United States. As prescribed in 25.302–6, insert the following clause: Contractors Performing Private Security Functions Outside the United States (DATE) (a) Definition. Private security functions means activities engaged in by a Contractor, as follows: (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 in accordance with the terms of this contract. (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 32 CFR part 159, and 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; (ii) Authorizing and accounting for weapons to be carried by or available to be used by personnel performing private security functions; (iii) Registering and identifying armored vehicles, helicopters, and other military vehicles operated by Contractors performing private security functions; 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 the Contractor and all employees of the Contractor who are responsible for 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 32 CFR part 159, Private Security Contractors (PSCs) Operating in Contingency Operations, Combat Operations, or Other Significant Military Operations; (ii) Applicable laws and regulations of the United States and the host country and PO 00000 Frm 00029 Fmt 4702 Sfmt 4702 43043 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 or relevant Chief of Mission 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 or relevant Chief of Mission for personnel performing private security functions; and (3) Cooperate with any Governmentauthorized investigation of incidents reported pursuant to paragraph (b)(1)(iv) of this clause and incidents of alleged misconduct by personnel performing private security functions under this contract by providing— (i) Access to employees performing private security functions; and (ii) 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 performing private security functions who fail to comply with or violate applicable requirements of this clause or 32 CFR part 159. Such action may be taken at the Government’s discretion without prejudice to its rights under any other provision of this contract. (2) The Contractor’s failure to comply with the requirements of this clause will be included in appropriate databases of past performance and considered in any responsibility determination or evaluation of past performance; and (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. (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 or subcontractor 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— (1) DoD contracts only: Contingency operations, combat operations, as designated by the Secretary of Defense, or other significant military operations, as designated by the Secretary of Defense; or (2) Non-DoD contracts: Combat operations, as designated by the Secretary of Defense, or other significant military operations, upon agreement of the Secretaries of Defense and State that the clause applies in that area. E:\FR\FM\23JYP1.SGM 23JYP1 43044 Federal Register / Vol. 77, No. 141 / Monday, July 23, 2012 / Proposed Rules (End of clause) [FR Doc. 2012–17477 Filed 7–20–12; 8:45 am] tkelley on DSK3SPTVN1PROD with PROPOSALS BILLING CODE 6820–EP–P VerDate Mar<15>2010 16:36 Jul 20, 2012 Jkt 226001 PO 00000 Frm 00030 Fmt 4702 Sfmt 9990 E:\FR\FM\23JYP1.SGM 23JYP1

Agencies

[Federal Register Volume 77, Number 141 (Monday, July 23, 2012)]
[Proposed Rules]
[Pages 43039-43044]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-17477]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 1, 25, and 52

[FAR Case 2011-029; Docket No. 2011-0029; Sequence 1]
RIN 9000-AM20


Federal Acquisition Regulation; Contractors Performing Private 
Security Functions Outside the United States

AGENCY: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Proposed rule.

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SUMMARY: The DoD, GSA, and NASA are proposing to amend the Federal 
Acquisition Regulation (FAR) to implement Governmentwide requirements 
in National Defense Authorization Acts that establish minimum processes 
and requirements for the selection, accountability, training, 
equipping, and conduct of personnel performing private security 
functions outside the United States.

DATES: Interested parties should submit written comments to the 
Regulatory Secretariat on or before September 21, 2012 to be considered 
in the formulation of a final rule.

ADDRESSES: Submit comments identified by FAR case 2011-029 by any of 
the following methods:
     Regulations.gov: http://www.regulations.gov.
    Submit comments via the Federal eRulemaking portal by searching for 
``FAR Case 2011-029'' under the heading ``Comment or Submission''. 
Select the link ``Send a Comment or Submission'' that corresponds with 
FAR Case 2011-029. Follow the instructions provided to complete the 
``Public Comment and Submission Form''. Please include your name, 
company name (if any), and ``FAR Case 2011-029'' on your attached 
document.
     Fax: 202-501-4067.
     Mail: General Services Administration, Regulatory 
Secretariat (MVCB), Attn: Hada Flowers, 1275 First Street NE., 7th 
Floor, Washington, DC 20417.
    Instructions: Please submit comments only and cite FAR case 2011-
029 in all correspondence related to this case. All comments received 
will be posted without change to http://www.regulations.gov, including 
any personal and/or business confidential information provided.

FOR FURTHER INFORMATION CONTACT: Mr. Michael O. Jackson, Procurement 
Analyst, at 202-208-4949 for clarification of content. For information 
pertaining to status or publication schedules, contact the Regulatory 
Secretariat at 202-501-4755. Please cite FAR case 2011-029.

SUPPLEMENTARY INFORMATION: 

I. Background

    The National Defense Authorization Act (NDAA) for Fiscal Year (FY) 
2008 (Pub. L. 110-181, enacted January 28, 2008), section 862, entitled 
``Contractors Performing Private Security Functions in Areas of Combat 
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). See 10 
U.S.C. 2302 Note. The statute requires (1) the establishment of 
Governmentwide policies and (2) FAR coverage implementing the 
Governmentwide policies specified in the statutes and the resulting 
Governmentwide policy document.
    This proposed rule is focused solely on providing implementing 
contractual language and a contract clause, as mandated by statute. 
Agencies are reminded that they may further supplement the 
applicability of these requirements beyond those included in this rule 
in accordance with FAR subpart 1.3, Agency Acquisition Regulations. 
While section 862 of the 2008 NDAA required standardization of rules 
for private security contractors that are performing in designated 
areas of combat operations or other significant military operations, 
the underlying Governmentwide instruction was the responsibility of the 
Secretary of Defense, in coordination with the Secretary of State. The 
resultant regulation was published as a final rule at 32 CFR part 159, 
entitled ``Private Security Contractors Operating in Contingency 
Operations, Combat Operations or Other Significant Military 
Operations,'' on August 11, 2011 (see 76 FR 49650) (or, see the 
corresponding Department of Defense Instruction (DoDI) 3020.50 at 
http://www.dtic.mil/whs/directives/corres/pdf/302050p.pdf).

[[Page 43040]]

    The regulations implementing the referenced statutory provisions 
for contracts are proposed to be located in FAR subpart 25.3, entitled 
``Contracts Performed Outside the United States.'' The coverage 
implementing section 862, as amended, is proposed to be located at a 
new FAR section 25.302.
    32 CFR part 159 provides two broad exemptions from this coverage, 
one for contracts entered into by elements of the intelligence 
community in support of intelligence activities (the source is 
paragraph (h)(1) of section 862, as amended), and a second for 
temporary arrangements entered into by non-DoD contractors for the 
performance of private security functions by individual indigenous 
personnel not affiliated with a local or expatriate security company 
(the source is 32 CFR 159.3, section (3) of the definition of ``covered 
contract'').
    Further, 32 CFR part 159 applies differently to DoD and non-DoD 
agencies. It applies to DoD contracts performed in areas of contingency 
operations outside the United States. It applies to DoD and non-DoD 
contracts performed in areas of combat operations as designated by the 
Secretary of Defense. It applies to DoD contracts performed in areas of 
other significant military operations as designated by the Secretary of 
Defense and to non-DoD contracts performed in areas of other 
significant military operations as designated by the Secretary of 
Defense and agreed to by the Secretary of State.
    FAR 2.101, Definitions, currently provides the definition of 
``contingency operation'' from 10 U.S.C. 101(a)(13). Definitions in 
this proposed rule include ``private security functions,'' ``other 
significant military operations,'' and ``area of combat operations'' 
from 32 CFR 159.3 and the statute. This coverage would not apply to the 
performance of private security functions within the U.S. It would not 
apply outside the U.S. in areas that are not (a) combat operations, (b) 
contingency operations, or (c) other significant military operations, 
as designated by the Secretary of Defense and agreed to by the 
Secretary of State. In addition, the proposed FAR coverage would apply 
to the performance of private security functions, regardless of whether 
the performance of the security functions are the primary function of 
the contract or ancillary functions. 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 the clause proposed at FAR 52.225-XX, Contractors 
Performing Private Security Functions Outside the United States, are 
applicable. As a further example, the same contractor, if delivering 
construction materials to a base in Germany would not be governed, at 
this time, by the requirements and limitations of FAR 52.225-XX because 
Germany is not a designated area. This is further clarified by the 
proposed FAR 25.302-4, Policy.
    The proposed FAR 25.302-4 subsection would implement the relevant 
policy document, 32 CFR part 159, and assign contractor 
responsibilities for the selection, accountability, training, 
equipping, and conduct of personnel performing private security 
functions under contracts in the covered areas. It also would assign 
responsibilities and establish procedures for incident reporting, use 
of and accountability for equipment, and rules for the use of force.
    The law includes specific remedies for violations of the 
responsibilities and procedures in the law. These are addressed at FAR 
25.302-5, Remedies. Without impinging on the Government's usual 
contractual remedies (e.g., termination for default), the proposed rule 
would allow the Government, at its discretion, to direct the contractor 
to remove or replace any personnel who fail to comply with, or violate, 
applicable requirements of the clause at FAR 52.225-XX. Such corrective 
actions would be required to be taken at the contractor's own expense 
and without prejudice to any other contractual rights. The proposed 
rule also includes 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's performance failures are severe, prolonged, 
or repeated, the statute requires the contracting officer to refer the 
matter to the appropriate suspension and debarment official.
    The clause prescription, at FAR 25.302-6, proposes to closely 
follow the applicability coverage at FAR 25.302-2.

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

    The changes may 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. An Initial Regulatory 
Flexibility Analysis (IRFA) has been prepared and is summarized as 
follows:

    DoD, GSA, and NASA are proposing to amend the Federal 
Acquisition Regulation (FAR) to implement section 862 of the NDAA 
for 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, together with the implementing Governmentwide 
regulations required by the statute (32 CFR part 159, published at 
76 FR 49650 on August 11, 2011) add requirements and limitations for 
contractors performing private security functions in areas of 
contingency operations, combat operations, or other military 
operations as designated by the Secretary of Defense, upon agreement 
of the Secretaries of Defense and State. These requirements are that 
contractors performing in areas such as Iraq and Afghanistan ensure 
that their personnel performing private security functions comply 
with 32 CFR part 159, 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.
    At this time, the only statistics available are from DoD. Other 
agencies are beginning to award contracts for performance in areas 
subject to the statute as U.S. troops are recalled. 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 under DoD contracts in these areas were already 
required to register their private security personnel, weapons, and 
certain vehicles under a web-based system (SPOT), and contractors 
for the Department of State and the U.S. Agency for International

[[Page 43041]]

Development (AID) have been using SPOT in Iraq and Afghanistan. The 
requirement to report the occurrence of certain incidences is on an 
as-needed basis and is minimal.
    As DoD personnel exit the areas of current contingency 
operations, e.g., Iraq and Afghanistan, support requirements are 
being transitioned to other Government agencies. The expected total 
number of contracts requiring the use of private security 
contractors is approximately one half of the DoD level, but the 
assumption was made that 20 percent of these contracts would 
continue to be awarded to small businesses.
    The impact on small business subcontractors will be minor, for 
several reasons. Not all subcontracts involve the performance of 
private security functions, in which case the clause does not flow 
down to the subcontract. Therefore, in these situations, there is no 
impact on small business subcontractors. Further, most subcontracts 
that require the performance of private security functions in the 
areas of Iraq and Afghanistan are being awarded to firms based in 
those countries. Such firms are, by definition, not small businesses 
because they are not U.S. firms. In the small proportion of 
situations where a subcontractor is both a U.S. small business and 
is performing private security functions, the costs of compliance 
will be included in the proposed and negotiated subcontract cost. At 
this time the clause would only apply to the Department of Defense, 
as the Secretary of Defense has made no designations of area (see 
FAR 25.302-2(b)).
    The publication of 32 CFR part 159 will provide consistency in 
reporting requirements and accountability for private security 
personnel and their weapons, thus simplifying compliance for small 
and large businesses.
    While DoD contractors and subcontractors currently are required 
by another clause to register equipment and personnel using the 
DoD's Synchronized Predeployment and Operational Tracker (SPOT) 
System, there are, at present, no reporting systems that have been 
developed by non-DoD agencies. An information collection request has 
been prepared and submitted to the Office of Management and Budget 
with this proposed rule.
    The proposed rule does not unnecessarily overlap or conflict 
with existing coverage at Defense Federal Acquisition Regulation 
Supplement (DFARS) 225.370. However, the DFARS coverage will be 
amended to delete duplicative text when a final rule is published 
for this FAR case. There are no alternatives that would further 
decrease the already minimal economic impact of the statute's 
implementation.

    The Regulatory Secretariat has submitted a copy of the IRFA to the 
Chief Counsel for Advocacy of the Small Business Administration. A copy 
of the IRFA may be obtained from the Regulatory Secretariat. The 
Councils will consider comments from small entities concerning the 
affected FAR parts 1, 25, and 52 in accordance with 5 U.S.C. 610. 
Comments must be submitted separately and should cite 5 U.S.C 601, et 
seq. (FAR case 2011-029), in correspondence.

IV. Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C chapter 35) applies. The 
proposed rule contains information collection requirements. 
Accordingly, the Regulatory Secretariat submitted a request for 
approval of a new information collection requirement for non-DoD 
agencies to the Office of Management and Budget (OMB). OMB has assigned 
the number 9000-0184, entitled ``Contractors Performing Private 
Security Functions Outside the United States,'' for this new 
information collection request. DoD's information collection has been 
approved previously under OMB Control Number 0704-0460, Synchronized 
Predeployment and Operation Tracker (SPOT) System.
    A. Public reporting burden for this collection of information is 
estimated to average 0.109 hours per response, including the time for 
identifying and inputting information.
    The annual reporting burden is estimated as follows:
    Respondents: 920.
    Responses per respondent: 5.
    Total annual responses: 4,600.
    Preparation hours per response: 0.109 hours.
    Total response Burden Hours: 501.
    B. Request for Comments Regarding Paperwork Burden.
    Submit comments, including suggestions for reducing this burden, 
not later than September 21, 2012 to: FAR Desk Officer, OMB, Room 
10102, NEOB, Washington, DC 20503, and a copy to the General Services 
Administration, Regulatory Secretariat Division (MVCB), ATTN: Hada 
Flowers, 1275 First Street NE., 7th Floor, Washington, DC 20417.
    Public comments are particularly invited on: whether this 
collection of information is necessary for the proper performance of 
functions of the FAR, and will have practical utility; whether our 
estimate of the public burden of this collection of information is 
accurate, and based on valid assumptions and methodology; ways to 
enhance the quality, utility, and clarity of the information to be 
collected; and ways in which we can minimize the burden of the 
collection of information on those who are to respond, through the use 
of appropriate technological collection techniques or other forms of 
information technology.
    Requesters may obtain a copy of the supporting statement from the 
General Services Administration, Regulatory Secretariat (MVCB), Attn: 
Hada Flowers, 1275 First Street NE., 7th floor, Washington, DC 20417. 
Please cite OMB Control Number 9000-0184, Contractors Performing 
Private Security Functions Outside the United States, in all 
correspondence.

List of Subjects in 48 CFR Parts 1, 25, and 52

    Government procurement.

    Dated: July 12, 2012.
Laura Auletta,
Director, Office of Governmentwide Acquisition Policy, Office of 
Acquisition Policy, Office of Governmentwide Policy.

    Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 1, 25, 
and 52 as set forth below:
    1. The authority citation for 48 CFR parts 1, 25, and 52 is revised 
to read as follows:

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 
U.S.C. 20113.

PART 1--FEDERAL ACQUISITION REGULATIONS SYSTEM


1.106  [Amended]

    2. Amend section 1.106, in the table following the introductory 
text, by adding in numerical sequence, FAR segment ``52.225-XX'' and 
its corresponding OMB Control No. ``9000-0184''.

PART 25--FOREIGN ACQUISITION

    3. Add subpart 25.302 to read as follows:
Subpart 25.302 Contractors Performing Private Security Functions 
Outside the United States
Sec.
25.302-1 Scope.
25.302-2 Applicability.
25.302-3 Definitions.
25.302-4 Policy.
25.302-5 Remedies.
25.302-6 Contract clause.

Subpart 25.302 Contractors Performing Private Security Functions 
Outside the United States


25.302-1  Scope.

    This section prescribes policy for implementing section 862 of the 
National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2008 
(Pub. L. 110-181), as amended by section 853 of the NDAA for FY 2009 
(Pub. L. 110-417), and sections 831 and 832 of the NDAA for FY 2011 
(Pub. L. 111-383) (see 10 U.S.C. 2302 Note).


25.302-2  Applicability.

    (a) DoD: This section applies to acquisitions by Department of 
Defense components for supplies and services under a contract that 
requires performance--

[[Page 43042]]

    (1) During contingency operations outside the United States;
    (2) In an area of combat operations as designated by the Secretary 
of Defense; or
    (3) In an area of other significant military operations as 
designated by the Secretary of Defense.
    (b) Non-DoD agencies: This section applies to acquisitions by non-
DoD agencies for supplies and services under a contract that requires 
performance--
    (1) In an area of combat operations as designated by the Secretary 
of Defense; or
    (2) In an area of other significant military operations as 
designated by the Secretary of Defense, and only upon agreement of the 
Secretary of Defense and the Secretary of State.
    (c) These designations can be found at http://www.acq.osd.mil/dpap/pacc/cc/designated_areas_of_other_significant_military_operations.html and http://www.acq.osd.mil/dpap/pacc/cc/designated_areas_of_combat_operations.html.
    (d) When the applicability requirements of this subsection are met, 
contractors and subcontractors must comply with 32 CFR part 159, 
whether the contract is for the performance of private security 
functions as a primary deliverable or the deliverable is other supplies 
or services and the provision of private security functions is 
ancillary.
    (e) The requirements of this section 25.302 shall not apply to 
contracts entered into by elements of the intelligence community in 
support of intelligence activities, and temporary arrangements entered 
into by non-DoD contractors for the performance of private security 
functions by individual indigenous personnel not affiliated with a 
local or expatriate security company; these temporary arrangements must 
still comply with local law.


25.302-3  Definitions.

    As used in this section--
    Area of combat operations means an area of operations designated as 
such by the Secretary of Defense when enhanced coordination of private 
security contractors working for Government agencies is required.
    Other significant military operations means activities, other than 
combat operations, as part of a contingency operation outside the 
United States that is carried out by United States Armed Forces in an 
uncontrolled or unpredictable high-threat environment where personnel 
performing security functions may be called upon to use deadly force 
(see 25.302-2(b)(2)).
    Private security functions means activities engaged in by a 
contractor, as follows--
    (1) Guarding of personnel, facilities, designated sites, or 
property of a Federal agency, the contractor or subcontractor, or a 
third party; or
    (2) Any other activity for which personnel are required to carry 
weapons in the performance of their duties in accordance with the terms 
of the contract.


25.302-4  Policy.

    (a) General. (1) The policy, responsibilities, procedures, 
accountability, training, equipping, and conduct of personnel 
performing private security functions in designated areas are addressed 
at 32 CFR part 159, entitled ``Private Security Contractors (PSCs) 
Operating in Contingency Operations, Combat Operations, or Other 
Significant Military Operations.'' Contractor responsibilities include 
ensuring that employees are aware of, and comply with, relevant orders, 
directives, and instructions; keeping appropriate personnel records; 
accounting for weapons; registering and identifying armored vehicles, 
helicopters, and other military vehicles; and reporting specified 
incidents in which personnel performing private security functions 
under a contract are involved.
    (2) In addition, contractors are required to cooperate with any 
Government-authorized investigation into incidents reported pursuant to 
paragraph (b)(3) of the clause at 52.225-XX, Contractors Performing 
Private Security Functions Outside the United States, by providing 
access to employees performing private security functions and relevant 
information in the possession of the contractor regarding the incident 
concerned.
    (b) Implementing guidance. In accordance with 32 CFR part 159--
    (1) Geographic combatant commanders will provide DoD private 
security contractors with guidance and procedures for the operational 
environment in their area of responsibility; and
    (2) In a designated area of combat operations, or areas of other 
significant military operations, as designated by the Secretary of 
Defense and only upon agreement of the Secretary of Defense and the 
Secretary of State, the relevant Chief of Mission will provide 
implementing instructions for non-DoD private security contractors and 
their personnel consistent with the standards set forth by the 
geographic combatant commander. In a designated area of combat 
operations, 32 CFR 159.4(c) gives the Chief of Mission the option of 
instructing non-DoD private security contractors and their personnel to 
follow the guidance and procedures of the geographic Combatant 
Commander and/or a sub-unified commander or joint force commander where 
specifically authorized by the combatant commander to do so and notice 
of that authorization is provided to non-DoD agencies.


25.302-5  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 performing 
private security functions 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, e.g., termination for default;
    (2) The contracting officer shall include the contractor's failure 
to comply with the requirements of this section in appropriate 
databases of past performance and consider any such failure in any 
responsibility determination or evaluation of past performance; and
    (3) In the case of award-fee contracts, the contracting officer 
shall consider a contractor's failure to comply with the requirements 
of this subsection 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.
    (b) If the performance failures are severe, prolonged, or repeated, 
the contracting officer shall refer the matter to the appropriate 
suspension and debarment official.


25.302-6  Contract clause.

    (a) Use the clause at 52.225-XX, Contractors Performing Private 
Security Functions Outside the United States, in the following 
solicitations and contracts:
    (1) A DoD contract for performance of services and/or delivery of 
supplies in an area of:
    (i) Contingency operations outside the United States;
    (ii) Combat operations, as designated by the Secretary of Defense; 
or
    (iii) Other significant military operations, as designated by the 
Secretary of Defense only upon agreement of the Secretary of Defense 
and the Secretary of State.

[[Page 43043]]

    (2) A contract of a non-DoD agency for performance of services and/
or delivery of supplies in:
    (i) An area of combat operations, as designated by the Secretary of 
Defense; or
    (ii) An area of other significant military operations, as 
designated by the Secretary of Defense and only upon agreement of the 
Secretary of Defense and the Secretary of State.
    (b) The clause is not required to be used for:
    (1) Contracts entered into by elements of the intelligence 
community in support of intelligence activities; or
    (2) Temporary arrangements entered into by non-DoD contractors for 
the performance of private security functions by individual indigenous 
personnel not affiliated with a local or expatriate security company.

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    4. Amend section 52.212-5 by--
    a. Revising the date of clause;
    b. Redesignating paragraphs (b)(43) through (51) as paragraphs 
(b)(44) through (52), respectively;
    c. Adding a new paragraph (b)(43);
    d. Redesignating paragraphs (e)(1)(xiii) and (xiv) as paragraphs 
(e)(1)(xiv) and (xv), respectively; and
    e. Adding a new paragraph (e)(1)(xiii).
    The revised and added text reads as follows:


52.212-5  Contract Terms and Conditions Required To Implement Statutes 
or Executive Orders--Commercial Items.

* * * * *

Contract Terms and Conditions Required To Implement Statutes or 
Executive Orders--Commercial Items (DATE)

* * * * *
    (b) * * *
    (43) 52.225-XX, Contractors Performing Private Security 
Functions Outside the United States (DATE) (Section 862, as amended, 
of the National Defense Authorization Act for Fiscal Year 2008; 10 
U.S.C. 2302 Note).
* * * * *
    (e)(1) * * *
    (i) * * *
    (xiii) 52.225-XX, Contractors Performing Private Security 
Functions Outside the United States (DATE) (Section 862, as amended, 
of the National Defense Authorization Act for Fiscal Year 2008; 10 
U.S.C. 2302 Note).
* * * * *
    5. Add section 52.225-XX to read as follows:


52.225-XX  Contractors Performing Private Security Functions Outside 
the United States.

    As prescribed in 25.302-6, insert the following clause:

Contractors Performing Private Security Functions Outside the United 
States (DATE)

    (a) Definition.
    Private security functions means activities engaged in by a 
Contractor, as follows:
    (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 in accordance with 
the terms of this contract.
    (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 32 CFR part 159, and 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;
    (ii) Authorizing and accounting for weapons to be carried by or 
available to be used by personnel performing private security 
functions;
    (iii) Registering and identifying armored vehicles, helicopters, 
and other military vehicles operated by Contractors performing 
private security functions; 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 the Contractor and all employees of the 
Contractor who are responsible for 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 32 CFR part 159, Private Security Contractors (PSCs) 
Operating in Contingency Operations, Combat Operations, or Other 
Significant Military Operations;
    (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 or relevant Chief of 
Mission 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 or relevant Chief of Mission for 
personnel performing private security functions; and
    (3) Cooperate with any Government-authorized investigation of 
incidents reported pursuant to paragraph (b)(1)(iv) of this clause 
and incidents of alleged misconduct by personnel performing private 
security functions under this contract by providing--
    (i) Access to employees performing private security functions; 
and
    (ii) 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 
performing private security functions who fail to comply with or 
violate applicable requirements of this clause or 32 CFR part 159. 
Such action may be taken at the Government's discretion without 
prejudice to its rights under any other provision of this contract.
    (2) The Contractor's failure to comply with the requirements of 
this clause will be included in appropriate databases of past 
performance and considered in any responsibility determination or 
evaluation of past performance; and
    (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.
    (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 or 
subcontractor 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--
    (1) DoD contracts only: Contingency operations, combat 
operations, as designated by the Secretary of Defense, or other 
significant military operations, as designated by the Secretary of 
Defense; or
    (2) Non-DoD contracts: Combat operations, as designated by the 
Secretary of Defense, or other significant military operations, upon 
agreement of the Secretaries of Defense and State that the clause 
applies in that area.


[[Page 43044]]


(End of clause)

[FR Doc. 2012-17477 Filed 7-20-12; 8:45 am]
BILLING CODE 6820-EP-P