Federal Acquisition Regulation; Contractors Performing Private Security Functions Outside the United States, 37670-37675 [2013-14610]

Agencies

• DEPARTMENT OF DEFENSE
• General Services Administration
• National Aeronautics and Space Administration

[Federal Register Volume 78, Number 120 (Friday, June 21, 2013)]
[Rules and Regulations]
[Pages 37670-37675]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-14610]



[[Page 37670]]

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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 1, 25, and 52

[FAC 2005-67; FAR Case 2011-029; Item I; Docket 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: Final rule.

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SUMMARY: DoD, GSA, and NASA are issuing a final rule amending 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: Effective Date: July 22, 2013.

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 FAC 2005-67, FAR Case 2011-
029.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD, GSA, and NASA published a proposed rule in the Federal 
Register at 77 FR 43039 on July 23, 2012, to implement section 862, as 
amended, of the National Defense Authorization Act (NDAA) for Fiscal 
Year (FY) 2008 (Pub. L. 110-181). 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). See 10 U.S.C. 2302 Note. The statute required (1) the 
establishment of Governmentwide policies and (2) FAR coverage 
implementing the Governmentwide policies specified in the statutes and 
the resulting Governmentwide policy document.
    The proposed FAR rule set forth the applicability, pertinent 
definitions, underlying policy, and a clause to implement minimum 
processes and requirements for personnel performing private security 
functions in designated areas outside the United States (i.e., in 
combat operations, during certain contingency operations, or in an area 
of other significant military operations as appropriately designated). 
Four respondents submitted comments on the proposed rule.

II. Determinations

    The Federal Acquisition Regulatory (FAR) Council has made the 
following determinations with respect to the rule's applicability of 
section 862 of the NDAA for FY 2008 (Pub. L. 110-181), as amended, 
entitled ``Contractors Performing Private Security Functions in Areas 
of Combat Operations or other Significant Military Operations,'' to 
contracts in amounts not greater than the simplified acquisition 
threshold (SAT), contracts for the acquisition of commercial items, and 
contracts for the acquisition of commercially available off-the-shelf 
(COTS) items.

A. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold

    41 U.S.C. 1905 governs the applicability of laws to contracts or 
subcontracts in amounts not greater than the SAT. It is intended to 
limit the applicability of laws to acquisitions that are not greater 
than the SAT. However, section 1905 provides that contracts or 
subcontracts at or below the SAT will not be exempt from a provision of 
law if it contains criminal or civil penalties; specifically refers to 
41 U.S.C. 1905 and states that the law applies to contracts and 
subcontracts in amounts not greater than the SAT; or if the FAR Council 
makes a written determination that it is not in the best interest of 
the Federal Government to exempt contracts or subcontracts in amounts 
not greater than the SAT from the provision of law.
    The requirements of section 862, as amended, should apply to all 
prime contracts and subcontracts regardless of dollar value because the 
Act requires a contract clause addressing the selection, training, 
equipping, and conduct of personnel performing private security 
functions to be inserted into every covered contract. A ``covered 
contract'' is defined by section 864 of the NDAA for FY 2008 as ``(A) a 
contract of a Federal agency for the performance of services in an area 
of combat operations, as designated by the Secretary of Defense under 
subsection (c) of section 862; (B) a subcontract at any tier under such 
a contract; or (C) a task order or delivery order issued under such a 
contract or subcontract.'' Since the NDAA specifically defines which 
contracts are covered, it is not in the best interest of the Federal 
Government to waive the applicability of these requirements to 
contracts in amounts not greater than the SAT because it would exclude 
a significant number of acquisitions and not fully meet the intent of 
the Act.

B. Applicability to Contracts for the Acquisition of Commercial Items

    41 U.S.C. 1906 governs the applicability of laws to the acquisition 
of commercial items. It is intended to limit the applicability of laws 
to the acquisition of commercial items. However, section 1906 provides 
that the acquisition of commercial items will not be exempt from a 
provision of law if it contains criminal or civil penalties; 
specifically refers to 41 U.S.C. 1906 and states that the law applies 
to the acquisition of commercial items; or if the FAR Council makes a 
written determination that it is not in the best interest of the 
Federal Government to exempt the acquisition of commercial items from 
the provision of law.
    The requirements of section 862, as amended, should apply to all 
prime contracts and subcontracts because the Act requires a contract 
clause addressing the selection, training, equipping, and conduct of 
personnel performing private security functions to be inserted into 
every covered contract. A ``covered contract'' is defined by section 
864 of the NDAA for FY 2008 as ``(A) a contract of a Federal agency for 
the performance of services in an area of combat operations, as 
designated by the Secretary of Defense under subsection (c) of section 
862; (B) a subcontract at any tier under such a contract; or (C) a task 
order or delivery order issued under such a contract or subcontract.'' 
Since the NDAA specifically defines which contracts are covered, it is 
not in the best interest of the Federal Government to waive the 
applicability of these requirements to the acquisition of commercial 
items because it would exclude a significant number of acquisitions and 
not fully meet the intent of the Act.

C. Applicability to Contracts for the Acquisition of COTS Items

    41 U.S.C. 1907 governs the applicability of laws to the acquisition 
of commercially available off-the-shelf (COTS) items. It is intended to 
limit the applicability of laws to the acquisition of COTS items. 
However, 41 U.S.C. 1907

[[Page 37671]]

provides that the acquisition of COTS items will not be exempt from a 
provision of law if it contains criminal or civil penalties; 
specifically refers to 41 U.S.C. 1907 and states that the law applies 
to the acquisition of COTS items; concerns authorities or 
responsibilities under the Small Business Act (15 U.S.C. 644) or bid 
protest procedures developed under the authority of 31 U.S.C. 3551 et 
seq.; 10 U.S.C. 2305(e) and (f); or 41 U.S.C. 3706 and 3707; or if the 
Administrator for Federal Procurement Policy makes a written 
determination that it would not be in the best interest of the Federal 
Government to exempt the acquisition of COTS items from the provision 
of law.
    The requirements of section 862, as amended, should apply to all 
prime contracts and subcontracts because the Act requires a contract 
clause addressing the selection, training, equipping, and conduct of 
personnel performing private security functions to be inserted into 
every covered contract. A ``covered contract'' is defined by section 
864 of the NDAA for FY 2008 as ``(A) a contract of a Federal agency for 
the performance of services in an area of combat operations, as 
designated by the Secretary of Defense under subsection (c) of section 
862; (B) a subcontract at any tier under such a contract; or (C) a task 
order or delivery order issued under such a contract or subcontract.'' 
Since the NDAA specifically defines which contracts are covered, it is 
not in the best interest of the Federal Government to waive the 
applicability of these requirements to the acquisition of COTS items 
because it would exclude a significant number of acquisitions and not 
fully meet the intent of the Act.

III. Discussion and Analysis

    The Civilian Agency Acquisition Council and the Defense Acquisition 
Regulations Council (the Councils) reviewed the comments in the 
development of the final rule. A discussion of the comments and the 
changes made to the rule as a result of those comments are provided as 
follows:

A. Summary of Significant Changes

     An ``Applicability'' paragraph was added to the contract 
clause at FAR 52.225-26 in order to address situations where contract 
performance was to take place partially in a designated area and 
partially in a different, non-designated area.
     The applicability statement at FAR 25.302-3(a)(3) was 
revised to match the clause prescription at FAR 25.302-6(a)(1) so that 
the agreement of the Secretary of State is required for designations of 
an area of ``other significant military operations'' for purposes of 
applicability of this rule to a DoD acquisition.

B. Analysis of Public Comments

1. Support for the Rule
    Comment: One respondent expressed support for the rule, stating 
that the proposed amendment is crucial to our national security. The 
respondent concluded that the actions of private security contractors 
have far-reaching impacts on our international reputation and the 
success of worldwide peacekeeping and reconstruction efforts. The 
respondent stated that the record-keeping requirements of this rule 
will curb the illicit trade of weapons and other defense articles and 
increase the emphasis on qualification, training, and screening to 
improve the professionalism of security contractor personnel.
    Response: Noted.
2. Applicability
    Comment: One respondent suggested that FAR 25.302-2(a) and (b) (now 
25.302-3(a) and (b)) should be amended to delete the phrase ``for 
supplies and services'' and refer only to ``contracts.'' The respondent 
made a related comment at FAR 25.302-2(d).
    Response: Concur. This change removes the likelihood of confusion 
as to whether requirements such as construction, reconstruction, 
commodities, or utilities are included. While all these categories 
could be considered either supplies or services, it removes the 
possibility of misinterpretation.
3. Clause Prescription
    Comment: One respondent recommended that the clause prescription at 
25.302-6(a)(1) be changed by deleting ``of services and/or delivery of 
supplies,'' and that a similar change be made at (a)(2). The respondent 
also recommends substituting ``in, or with significant likelihood of 
performance in, an area of''.
    Response: The Councils agree to the recommended deletion at 25.302-
6(a)(1) and (a)(2) in order to remove the likelihood of confusion as to 
whether requirements such as construction, reconstruction, commodities, 
or utilities are included. The Councils do not agree with requiring the 
contracting officer to insert the clause when performance in a 
designated area is only likely. This would require offerors to account 
for this in proposals and unnecessarily raise proposed prices. Instead, 
the contracting officer should modify the solicitation or contract to 
add the clause if requirements change so that performance is needed in 
a designated area.
    The Councils also are clarifying the clause to show that, if the 
contract is performed both in a designated area and in an area that is 
not designated, the clause only applies to the designated area. A new 
paragraph (b) is added to the clause that specifies that the clause 
applies to (1) DoD contracts to be performed 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; and (2) contracts issued by a non-DoD agency for 
performance in an area of (i) combat operations, as designated by the 
Secretary of Defense, or (ii) 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.
4. Accounting for Weapons
    Comment: A respondent proposed to modify the contractor 
requirements at paragraph (b)(1)(ii) of the clause at FAR 52.225-26, 
Contractors Performing Private Security Functions Outside the United 
States, to add to the current requirement to authorize and account for 
weapons, additional requirements to authorize and account for 
``International Trafficking in Arms (ITAR)-restricted items, if issued, 
and items designated as Sensitive Items by the Commander or Chief of 
Mission.'' The respondent stated that accounting solely for weapons was 
insufficient to protect deployed military and civilian personnel from 
the dangers of sensitive equipment getting into the hands of enemy 
combatants due to poor contractor accountability. As an example, the 
respondent noted that, if enemy combatants or terrorists secure 
uniforms, it will be much harder to identify them.
    Response: This FAR rule implements statutory requirements that are 
unique to contractors performing private security functions. While the 
concerns cited by the respondent may be valid, they are not unique to 
the performance of private security functions and are therefore outside 
the scope of this rule. Further, other laws and policies cover 
accountability for the items cited by the respondent. For example, an 
ITAR

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license includes accountability requirements for the specific items 
covered by the license.
5. Clarifications for Federal Register Notice
    Comment: One respondent recommended that the preamble of the final 
rule clarify that contractors do not waive any applicable privileges in 
order to be found to have sufficiently cooperated in a Government-
authorized investigation, and that contractors should not be penalized 
in past performance evaluations or responsibility evaluations if the 
contractor provides access to an employee but the employee chooses not 
to cooperate.
    Response: The Councils agree with these comments, on how the 
actions of contractors and their employees would be handled under 
United States law. These are similar to principles found in FAR 52.203-
13, Contractor Code of Business Ethics and Conduct, in the definition 
of ``full cooperation''. The Councils however note that foreign country 
local law is also involved and cannot be changed by this rule.
6. Editorial Comments
    Comment: A respondent recommended deleting the term ``subpart'' at 
FAR 25.302, as this is a section, not a subpart, of the FAR.
    Response: This recommended change is made in the final rule.
    Comment: A respondent noted that the applicability section of FAR 
25.302 had been erroneously placed at 25.302-2, prior to the 
definitions section (at FAR 25.302-3). The FAR drafting convention is 
to place the definitions after the ``scope'' portion but prior to the 
``applicability'' section of a rule.
    Response: FAR section 25.302 is reordered in the final rule as 
noted by the respondent.

IV. 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 Executive Order 12866, Regulatory Planning 
and Review, dated September 30, 1993. This rule is not a major rule 
under 5 U.S.C. 804.

V. Regulatory Flexibility Act

    DoD, GSA, and NASA have prepared a Final Regulatory Flexibility 
Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5 
U.S.C. 601, et seq. The FRFA is summarized as follows:

    The case implements sections of the National Defense 
Authorization Act for Fiscal Year 2008, as amended by subsequent 
NDAAs (see 10 U.S.C. 2302 Note), that establish minimum processes 
and requirements for the selection, accountability, training, 
equipping, and conduct of personnel performing private security 
functions outside the United States.
    No comments on the initial regulatory flexibility analysis were 
received from the Chief Counsel for Advocacy of the Small Business 
Administration or the public in response to the publication of the 
proposed rule.
    The impact on small business entities will be minor, for several 
reasons. Not all contracts involve the performance of private 
security functions, in which case the clause does not apply. In 
these situations, therefore, there is no impact on small business 
entities. Also, most contracts that require the performance of 
private security functions in the areas of Iraq and Afghanistan are 
being awarded to firms based in those countries. Most contracts for 
these services have not been awarded to small businesses because 
they are awarded and performed overseas. In the few cases in which a 
contractor 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. Further, the publication 
of 32 CFR part 159 provides consistency in reporting requirements 
and accountability for private security personnel and their weapons 
(as required by the law). This increased clarity serves to relieve 
the burdens on small businesses.
    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. 
The associated paperwork burden was previously approved for DoD 
under OMB control number 0704-0460, Synchronized Predeployment and 
Operational Tracker (SPOT) System. There is, at present, no 
reporting system that has been developed by non-DoD agencies. An 
information collection request for non-DoD agencies was submitted to 
the Office of Management and Budget with the proposed rule. The 
impact of this rule is limited to those few firms that are both a 
U.S. small business and are performing private security functions. 
The reporting burden has been limited to those items specifically 
required by law, and the use of the automated SPOT system enables 
easy and quick updates as necessary.

    Interested parties may obtain a copy of the FRFA from the 
Regulatory Secretariat. The Regulatory Secretariat has submitted a copy 
of the FRFA to the Chief Counsel for Advocacy of the Small Business 
Administration.

VI. Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. chapter 35) applies. DoD's 
information collection has been approved previously under OMB Control 
Number 0704-0460, Synchronized Predeployment and Operation Tracker 
(SPOT) System. However, SPOT does not include reporting of specified 
incidents in which personnel performing private security functions 
under a contract are involved (see paragraph (c)(1)(iv) of the clause 
at FAR 52.225-26). In addition, there is a new information collection 
requirement for non-DoD agencies and incident reporting for DOD 
agencies that was previously submitted to the Office of Management and 
Budget and approved under OMB Control Number 9000-0184, Contractors 
Performing Private Security Functions Outside the United States.

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

    Government procurement.

    Dated: June 13, 2013.
William Clark,
Acting Director, Office of Governmentwide Acquisition Policy, Office of 
Acquisition Policy, Office of Governmentwide Policy.

    Therefore, DoD, GSA, and NASA amend 48 CFR parts 1, 25 and 52 as 
set forth below:

0
1. The authority citation for 48 CFR parts 1, 25, and 52 continues 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]

0
2. Amend section 1.106, in the table following the introductory text, 
by adding in numerical sequence, FAR segment ``25.302'' and its 
corresponding OMB Control No. ``9000-0184''.

PART 25--FOREIGN ACQUISITION

0
3. Add sections 25.302 through 25.302-6 to subpart 25.3 to read as 
follows:


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.

[[Page 37673]]

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   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 
contractors performing private security functions 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 25.302-3(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.


25.302-3   Applicability.

    (a) DoD: This section applies to acquisitions by Department of 
Defense components under a contract that requires performance--
    (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, and only upon agreement of the 
Secretary of Defense and the Secretary of State.
    (b) Non-DoD agencies: This section applies to acquisitions by non-
DoD agencies 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 https://www.acq.osd.mil/dpap/pacc/cc/designated_areas_of_other_significant_military_operations.html and https://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 provision of private security 
functions is ancillary to the stated deliverables.
    (e) The requirements of section 25.302 shall not apply to--
    (1) Contracts entered into by elements of the intelligence 
community in support of intelligence activities; or
    (2) Temporary arrangements entered into on a non-DoD contract 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.


25.302-4  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 (c)(3) of the clause at 52.225-26, 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 contractors 
performing private security functions 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 contractors performing private 
security functions and their personnel consistent with the standards 
set forth by the geographic combatant commander. In accordance with 32 
CFR 159.4(c), the Chief of Mission has the option of instructing non-
DoD contractors performing private security functions 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 or subcontractor 
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 
suspending and debarring official.


25.302-6   Contract clause.

    (a) Use the clause at 52.225-26, Contractors Performing Private 
Security Functions Outside the United States, in

[[Page 37674]]

the following solicitations and contracts:
    (1) A DoD contract for performance 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.
    (2) A contract of a non-DoD agency for performance in an area of--
    (i) Combat operations, as designated by the Secretary of Defense; 
or
    (ii) 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

0
4. Amend section 52.212-5 by--
0
a. Revising the date of the clause;
0
b. Redesignating paragraphs (b)(43) through (b)(51) as paragraphs 
(b)(44) through (b)(52), respectively;
0
c. Adding a new paragraph (b)(43);
0
d. Redesignating paragraphs (e)(1)(xiii) and (e)(1)(xiv) as paragraphs 
(e)(1)(xiv) and (e)(1)(xv), respectively; and
0
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 (Jul 2013)

* * * * *
    (b) * * *
    ------(43) 52.225-26, Contractors Performing Private Security 
Functions Outside the United States (Jul 2013) (Section 862, as 
amended, of the National Defense Authorization Act for Fiscal Year 
2008; 10 U.S.C. 2302 Note).
* * * * *
    (e)(1) * * *
    (i) * * *
    (xiii) 52.225-26, Contractors Performing Private Security Functions 
Outside the United States (Jul 2013) (Section 862, as amended, of the 
National Defense Authorization Act for Fiscal Year 2008; 10 U.S.C. 2302 
Note).
* * * * *

0
5. Add section 52.225-26 to read as follows:

52.225-26 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 (Jul 2013)

    (a) Definition.
    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.
    (2) 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) Applicability. If this contract is performed both in a 
designated area and in an area that is not designated, the clause 
only applies to performance in the designated area.
    (1) For DoD contracts, designated areas are areas 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, and only upon agreement of the Secretary 
of Defense and the Secretary of State.
    (2) For non-DoD contracts, designated areas are areas of--
    (i) Combat operations, as designated by the Secretary of 
Defense; or
    (ii) 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) 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 (c)(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.
    (d) 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 or subcontractor 
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

[[Page 37675]]

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.
    (e) 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.
    (f) Subcontracts. The Contractor shall include the substance of 
this clause, including this paragraph (f), 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 upon agreement of the Secretary of State; 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.

(End of clause)


0
6. Amend section 52.244-6 by--
0
a. Revising the date of the clause;
0
b. Redesignating paragraph (c)(1)(ix) as paragraph (c)(1)(x); and
0
c. Adding a new paragraph (c)(1)(ix).
    The revised and added text reads as follows:


52.244-6   Subcontracts for Commercial Items.

* * * * *

Subcontracts for Commercial Items (Jul 2013)

* * * * *
    (c)(1) * * *
    (ix) 52.225-26, Contractors Performing Private Security 
Functions Outside the United States Jul 2013) (Section 862, as 
amended, of the National Defense Authorization Act for Fiscal Year 
2008; 10 U.S.C. 2302 Note).
* * * * *
[FR Doc. 2013-14610 Filed 6-20-13; 8:45 am]
BILLING CODE 6820-EP-P