Defense Federal Acquisition Regulation Supplement: Defense Contractors Performing Private Security Functions (DFARS Case 2015-D021), 42559-42562 [2016-15247]
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Federal Register / Vol. 81, No. 126 / Thursday, June 30, 2016 / Rules and Regulations
PART 212—ACQUISITION OF
COMMERCIAL ITEMS
‘‘and plan to use the pilot program’’ in
its place.
212.7100
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
[Amended]
2. Section 212.7100 is amended by
removing ‘‘(Pub. L. 111–383)’’ and
adding ‘‘(Pub. L. 111–383), as modified
by section 892 of the National Defense
Authorization Act for Fiscal Year 2016
(Pub. L. 114–92)’’ in its place.
■ 3. Section 212.7101 is revised to read
as follows:
■
212.7101
Definitions.
As used in this subpart—
Military-purpose nondevelopmental
item means a nondevelopmental item
that meets a validated military
requirement, as determined in writing
by the responsible program manager,
and has been developed exclusively at
private expense. An item shall not be
considered to be developed at private
expense if development of the item was
paid for in whole or in part through—
(1) Independent research and
development costs or bid and proposal
costs, per the definition in FAR 31.205–
18, that have been reimbursed directly
or indirectly by a Federal agency or
have been submitted to a Federal agency
for reimbursement; or
(2) Foreign government funding.
Nondevelopmental item is defined in
FAR 2.101 and also includes previously
developed items of supply that require
modifications other than those
customarily available in the commercial
marketplace if such modifications are
consistent with the requirement at
212.7102–1(c)(1).
212.7102–1
4. Amend section 212.7102–1 by—
a. In the introductory text, removing
‘‘The contracting officer may enter into
contracts with nontraditional defense
contractors for’’ and adding ‘‘The
contracting officer may utilize this pilot
program to enter into contracts for’’ in
its place;
■ b. Removing paragraph (a);
■ c. Redesignating paragraphs (b)
through (e) as paragraphs (a) through
(d), respectively;
■ d. In the newly redesignated
paragraph (b), removing ‘‘$53.5 million’’
and adding ‘‘$100 million’’ in its place;
and
■ e. In the newly redesignated
paragraph (c)(2), removing ‘‘(d)(1)’’ and
adding ‘‘(c)(1)’’ in its place.
srobinson on DSK5SPTVN1PROD with RULES
[Amended]
5. Amend 212.7103 by removing ‘‘in
all solicitations’’ and adding ‘‘in
solicitations’’ in its place, and removing
‘‘for this pilot program’’ and adding
■
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[Amended]
6. Amend section 252.212–7002 by—
a. Removing the clause date ‘‘(JUN
2012)’’ and adding ‘‘(JUN 2016)’’ in its
place;
■ b. In paragraph (a)—
■ i. For the definition of
‘‘nondevelopmental item’’, removing
‘‘FAR 2.101 and for the purpose of this
subpart also includes’’ and adding ‘‘FAR
2.101 and also includes’’ in its place,
and removing ‘‘of DFARS 212.7102–
2(d)(1)’’ and adding ‘‘at DFARS
212.7102–1(c)(1)’’ in its place; and
■ ii. Removing the definition of
‘‘nontraditional defense contractor’’;
■ c. In paragraph (b), removing
‘‘Nondevelopmental Items,’’ and adding
‘‘Nondevelopmental Items, as modified
by section 892 of the National Defense
Authorization Act for Fiscal Year 2016
(Pub. L. 114–92),’’ in its place; and
■ d. Removing paragraph (c).
■
■
[FR Doc. 2016–15256 Filed 6–29–16; 8:45 am]
BILLING CODE 5001–06–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 216, 225, and 252
[Docket DARS–2015–0045]
RIN 0750–AI69
[Amended]
■
■
212.7103
252.212–7002
Jkt 238001
Defense Federal Acquisition
Regulation Supplement: Defense
Contractors Performing Private
Security Functions (DFARS Case
2015–D021)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
DoD is issuing a final rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to consolidate all requirements
for contractors performing private
security functions outside the United
States applicable to DoD contracts in the
DFARS and make changes regarding
applicability and high-level quality
assurance standards.
DATES: Effective June 30, 2016.
FOR FURTHER INFORMATION CONTACT: Ms.
Julie Hammond, telephone 571–372–
6174.
SUMMARY:
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42559
SUPPLEMENTARY INFORMATION:
I. Background
DoD published a proposed rule in the
Federal Register at 80 FR 81496 on
December 30, 2015, to consolidate all
requirements for DoD contractors
performing private security functions in
certain designated operational areas in
the DFARS at 225.302 and the clause at
252.225–7039, Defense Contractors
Performing Private Security Functions
Outside the United States. The rule also
proposed to identify the international
high-quality assurance standard ‘‘ISO
18788: Management System for Private
Security Operations’’ as an approved
alternative to the American standard
‘‘ANSI/ASIS PSC.1–2012’’ currently
required by DFARS clause 252.225–
7039. One respondent submitted public
comments in response to the proposed
rule.
II. Discussion and Analysis
DoD reviewed the public comments in
the development of the final rule. There
are no changes from the proposed rule
in the final rule. A discussion of the
comments is provided as follows:
A. Analysis of Public Comments
Comment: The respondent proposed
that the clause at DFARS 252.225–7039
be amended to require a contractor to
demonstrate compliance with the
American National Standard, ANSI/
ASIS PSC.1–2012, and/or the
International Standard, ISO 18788, by
producing a valid certificate of
compliance from a nationally accredited
certification body.
Response: DoD does not have the
statutory authority to require a
certificate of compliance from a
certification body accredited by a
national accreditation body. Section 833
of the National Defense Authorization
Act for Fiscal Year 2011 only authorized
that the Secretary of Defense ‘‘may
provide for the consideration of such
certifications as a factor in the
evaluation of proposals for award of a
covered contract for the provision of
private security functions.’’ Therefore,
no changes are made in the rule.
Comment: The respondent also
proposed that the clause explicitly state
that the requirements of ANSI/ASIS
PSC.1–2012 ‘‘are incumbent upon
subcontractors on relevant DoD
contracts.’’
Response: The Government does not
have privity of contract with
subcontractors. However, paragraph (f)
of the clause requires contractors to
include the substance of the clause, to
include paragraph (c)(4) of the clause, in
covered subcontracts. Paragraph (c)(4) of
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the clause requires compliance with
ANSI/ASIS PSC.1–2012 or ISO 18788.
B. Other Changes
For consistency in use of terminology
in DFARS clause 252.225–7039, in
paragraphs (c)(1) and (2), the term
‘‘employees of the Contractor’’ is
removed and replaced with ‘‘Contractor
personnel’’ in both places.
III. Applicability to Contracts at or
Below the Simplified Acquisition
Threshold and for Commercial Items,
Including Commercially Available Offthe Shelf Items
This rule amends the DFARS to
consolidate all requirements for
contractors performing private security
functions outside the United States
applicable to DoD contracts in the
DFARS and makes changes regarding
applicability and high-level quality
assurance standards. DFARS clause
252.225–7039, Defense Contractors
Performing Private Security Functions
Outside the United States, and its
prescription at DFARS 225.302–6 are
amended. The revisions, however, do
not affect applicability of the clause at
or below the simplified acquisition
threshold or to commercial item
acquisitions.
srobinson on DSK5SPTVN1PROD with RULES
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 not a significant
regulatory action and, therefore, was not
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.
V. Regulatory Flexibility Act
A final regulatory flexibility analysis
(FRFA) has been prepared consistent
with the Regulatory Flexibility Act, 5
U.S.C. 601, et seq. The FRFA is
summarized as follows:
This final rule amends the Defense
Federal Acquisition Regulation
Supplement (DFARS) to consolidate all
requirements for DoD contractors
performing private security functions
outside the U.S. from the FAR 25.302
and the clause at FAR 52.225–26,
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Contractors Performing Private Security
Functions Outside the Unites States, in
DFARS 225.302 and the clause at
DFARS 252.225–7039, Defense
Contractors Performing Private Security
Functions Outside the United States.
The objectives of this rule are as
follows:
• Provide DoD contracting officers
and contractors a single clause covering
all requirements related to the
performance of private security
functions outside the United States that
may be updated by DoD as policies are
issued that affect only defense
contractors.
• Identify the international highquality assurance standard ‘‘ISO 18788:
Management System for Private Security
Operations’’ as an approved alternative
to the American standard ‘‘ANSI/ASIS
PSC.1–2012’’ currently required by
DFARS clause 252.225–7039.
No comments were received from the
public in response to the initial
regulatory flexibility analysis.
This final rule will apply to defense
contractors performing private security
functions outside of the United States in
designated operational areas under DoD
contracts. According to data available in
the Federal Procurement Data System
for fiscal year (FY) 2013, DoD awarded
159 contracts that required performance
outside the United States, although not
necessarily in a designated operation
area, and cited the National American
Industry Classification System code
561612, Security Guards and Patrol
Services, of which 33 contracts (21%)
were awarded to small businesses. In FY
2014, DoD awarded 123 such contracts,
of which 31 contracts (25%) were to
small businesses.
The private security contractors are
required to report incidents when: (1) A
weapon is discharged by personnel
performing private security functions;
(2) personnel performing private
security functions are attacked, killed,
or injured; (3) persons are killed or
injured or property is destroyed as a
result of conduct by Contractor
personnel; (4) a weapon is discharged
against personnel performing private
security functions or personnel
performing such functions believe a
weapon was so discharged; or (5) 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. As a
regular record keeping requirement,
private security contractors are required
to keep appropriate records of personnel
by registering in the Synchronized
Predeployment Operational Tracker the
equipment and weapons used by its
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personnel. The complexity of the work
to prepare these records requires the
expertise equivalent to that of a GS–11,
step 5 with clerical and analytical skills
to create the documents.
There are no known significant
alternatives to the rule. The impact of
this rule on small business is not
expected to be significant.
VI. Paperwork Reduction Act
This rule contains information
collection requirements under the
Paperwork Reduction Act (44 U.S.C.
chapter 35). The Office of Management
and Budget (OMB) has assigned OMB
Control Number 0704–0549, entitled
‘‘Defense Federal Acquisition
Regulation Supplement (DFARS) part
225, Foreign Acquisition, and Defense
Contractors Performing Private Security
Functions Outside the United States.’’
List of Subjects in 48 CFR Parts 216,
225, and 252
Government procurement.
Jennifer L. Hawes,
Editor, Defense Acquisition Regulations
System.
Therefore, 48 CFR parts 216, 225, and
252 are amended as follows:
■ 1. The authority citation for 48 CFR
parts 216, 225, and 252 continues to
read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
PART 216—TYPES OF CONTRACTS
216.405–2–71
[Amended]
2. In section 216.405–2–71, amend
paragraph (b) by removing ‘‘FAR
52.225–26, Contractors Preforming
Private Security Functions’’ and adding
‘‘252.225–7039, Defense Contractors
Performing Private Security Functions
Outside the United States’’ in its place.
■
PART 225—FOREIGN ACQUISITION
225.302–6
[Amended]
3. Amend section 225.302–6
introductory text by removing ‘‘Outside
the United States,’’ and adding ‘‘Outside
the United States, instead of FAR clause
52.225–26, Contractors Performing
Private Security Functions Outside the
United States,’’ in its place.
■
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
4. Amend section 252.225–7039 by—
a. Removing the clause date ‘‘(JAN
2015)’’ and adding ‘‘(JUN 2016)’’ in its
place;
■
■
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b. Redesignating paragraphs (a) and
(b) as paragraphs (c) and (f),
respectively;
■ c. Adding new paragraphs (a) and (b);
■ d. Revising newly redesignated
paragraph (c);
■ e. Adding paragraphs (d) and (e);
■ f. In newly redesignated paragraph (f),
removing ‘‘paragraph (b)’’ and adding
‘‘paragraph (f)’’ in its place.
The additions and revision read as
follows:
■
252.225–7039 Defense Contractors
Performing Private Security Functions
Outside the United States.
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*
*
*
*
*
(a) Definitions. As used in this
clause—
Full cooperation—(1) Means
disclosure to the Government of the
information sufficient to identify the
nature and extent of the incident and
the individuals responsible for the
conduct. It includes providing timely
and complete response to Government
auditors’ and investigators’ requests for
documents and access to employees
with information;
(2) Does not foreclose any contractor
rights arising in law, the FAR or the
terms of the contract. It does not
require—
(i) The contractor to waive its
attorney-client privilege or the
protections afforded by the attorney
work product doctrine; or
(ii) Any officer, director, owner, or
employee of the contractor, including a
sole proprietor, to waive his or her
attorney-client privilege or Fifth
Amendment rights; and
(3) Does not restrict the contractor
from—
(i) Conducting an internal
investigation; or
(ii) Defending a proceeding or dispute
arising under the contract or related to
a potential or disclosed violation.
Private security functions means the
following activities engaged in by a
contractor:
(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. Designated areas
are areas outside the United States of—
(1) Contingency operations;
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(2) Combat operations, as designated
by the Secretary of Defense;
(3) Other significant military
operations (as defined in 32 CFR part
159), designated by the Secretary of
Defense upon agreement of the
Secretary of State;
(4) Peace operations, consistent with
Joint Publication 3–07.3; or
(5) Other military operations or
military exercises, when designated by
the Combatant Commander.
(c) Requirements. The Contractor
shall—
(1) Ensure that all Contractor
personnel who are responsible for
performing private security functions
under this contract comply with 32 CFR
part 159 and any orders, directives, or
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, accounting for and
registering in Synchronized
Predeployment and Operational Tracker
(SPOT), weapons to be carried by or
available to be used by personnel
performing private security functions;
(iii) Identifying and registering in
SPOT armored vehicles, helicopters and
other military vehicles operated by
Contractors performing private security
functions; and
(iv) In accordance with orders and
instructions established by the
applicable Combatant Commander,
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 Contractor personnel
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
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42561
requirements established by 32 CFR part
159;
(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
Combatant Commander 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 Combatant
Commander or relevant Chief of Mission
for personnel performing private
security functions;
(3) Provide full cooperation 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; and
(4) Comply with ANSI/ASIS PSC.1–
2012, American National Standard,
Management System for Quality of
Private Security Company Operations—
Requirements with Guidance or the
International Standard ISO 18788,
Management System for Private Security
Operations—Requirements with
Guidance (located at https://
www.acq.osd.mil/log/PS/psc.html).
(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
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
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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.
*
*
*
*
*
[FR Doc. 2016–15247 Filed 6–29–16; 8:45 am]
BILLING CODE 5001–06–P
II. Discussion and Analysis
There are no changes from the
proposed rule made in the final rule.
The one respondent that submitted a
comment fully supported the proposed
rule.
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Part 225
[Docket DARS–2016–0007]
RIN 0750–AI88
Defense Federal Acquisition
Regulation Supplement: Treatment of
Interagency and State and Local
Purchases (DFARS Case 2016–D009)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
DoD is issuing a final rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to implement a section of the
National Defense Authorization Act for
Fiscal Year 2016 that is entitled
‘‘Treatment of Interagency and State and
Local Purchases.’’ This section provides
that contracts executed by DoD as a
result of the transfer of contracts from
the General Services Administration or
for which DoD serves as an item
manager for products on behalf of the
General Services Administration shall
not be subject to certain domestic source
restrictions, to the extent that such
contracts are for the purchase of
products by other Federal agencies or
State or local governments.
DATES: Effective June 30, 2016.
FOR FURTHER INFORMATION CONTACT: Ms.
Amy G. Williams, telephone 571–372–
6106.
SUPPLEMENTARY INFORMATION:
srobinson on DSK5SPTVN1PROD with RULES
SUMMARY:
I. Background
DoD published a proposed rule in the
Federal Register at 81 FR 17053 on
March 25, 2016, to implement section
897 of the National Defense
Authorization Act for Fiscal Year 2016
(Pub. L. 114–92). Section 897 provides
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that contracts executed by DoD as a
result of the transfer of contracts from
the General Services Administration or
for which DoD serves as an item
manager for products on behalf of the
General Services Administration shall
not be subject to the requirements under
10 U.S.C. chapter 148 (National Defense
Technology and Industrial Base,
Defense Investment, and Defense
Conversion), to the extent that such
contracts are for the purchase of
products by other Federal agencies or
State or local governments. One
respondent submitted public comments
in response to the proposed rule.
III. Applicability to Contracts at or
Below the Simplified Acquisition
Threshold and for Commercial Items,
Including Commercially Available Offthe-Shelf Items
This case does not add any new
provisions or clauses or impact any
existing provisions or clauses.
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 not a significant
regulatory action and, therefore, was not
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.
V. Regulatory Flexibility Act
A final regulatory flexibility analysis
(FRFA) has been prepared consistent
with the Regulatory Flexibility Act, 5
U.S.C. 601, et seq. The FRFA is
summarized as follows:
This rule implements section 897 of
the National Defense Authorization Act
for Fiscal Year 2016. The objective of
this rule is to eliminate the domestic
source restrictions of 10 U.S.C. chapter
148 when contracts executed by DoD as
a result of the transfer of contracts from
the General Services Administration or
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for which DoD serves as an item
manager for products on behalf of the
General Services Administration, to the
extent that such contracts are for the
purchase of products by other Federal
agencies or State or local governments.
There were no significant issues
raised by the public in response to the
initial regulatory flexibility analysis.
DoD does not anticipate frequent
application of this rule. The rule
removes the domestic source restriction
for the specified items in the specified
circumstances. In the rare instance in
which the circumstances of the statute
apply, it is possible that an item could
be acquired from a foreign source, rather
than a domestic source, which could
potentially be a small business. It is not
possible to estimate the number of small
entities that may be affected, because it
is unknown the extent to which the
given circumstances may occur.
There are no projected reporting,
recordkeeping, or other compliance
requirements.
DoD has not identified any
alternatives that would minimize any
economic impact on small entities and
still meet the requirements of the
statute.
VI. Paperwork Reduction Act
The rule does not contain any
information collection requirements that
require the approval of the Office of
Management and Budget under the
Paperwork Reduction Act (44 U.S.C.
chapter 35).
List of Subjects in 48 CFR Part 225
Government procurement.
Jennifer L. Hawes,
Editor, Defense Acquisition Regulations
System.
Therefore, 48 CFR part 225 is
amended as follows:
PART 225—FOREIGN ACQUISITION
1. The authority citation for 48 CFR
part 225 continues to read as follows:
■
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
2. Amend section 225.7002–2 by
adding paragraph (o) to read as follows:
■
225.7002–2
*
Exceptions.
*
*
*
*
(o) Acquisitions that are interagency,
State, or local purchases that are
executed by DoD as a result of the
transfer of contracts from the General
Services Administration or for which
DoD serves as an item manager for
products on behalf of the General
Services Administration. According to
section 897 of the National Defense
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]]>Agencies
[Federal Register Volume 81, Number 126 (Thursday, June 30, 2016)]
[Rules and Regulations]
[Pages 42559-42562]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-15247]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 216, 225, and 252
[Docket DARS-2015-0045]
RIN 0750-AI69
Defense Federal Acquisition Regulation Supplement: Defense
Contractors Performing Private Security Functions (DFARS Case 2015-
D021)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: DoD is issuing a final rule amending the Defense Federal
Acquisition Regulation Supplement (DFARS) to consolidate all
requirements for contractors performing private security functions
outside the United States applicable to DoD contracts in the DFARS and
make changes regarding applicability and high-level quality assurance
standards.
DATES: Effective June 30, 2016.
FOR FURTHER INFORMATION CONTACT: Ms. Julie Hammond, telephone 571-372-
6174.
SUPPLEMENTARY INFORMATION:
I. Background
DoD published a proposed rule in the Federal Register at 80 FR
81496 on December 30, 2015, to consolidate all requirements for DoD
contractors performing private security functions in certain designated
operational areas in the DFARS at 225.302 and the clause at 252.225-
7039, Defense Contractors Performing Private Security Functions Outside
the United States. The rule also proposed to identify the international
high-quality assurance standard ``ISO 18788: Management System for
Private Security Operations'' as an approved alternative to the
American standard ``ANSI/ASIS PSC.1-2012'' currently required by DFARS
clause 252.225-7039. One respondent submitted public comments in
response to the proposed rule.
II. Discussion and Analysis
DoD reviewed the public comments in the development of the final
rule. There are no changes from the proposed rule in the final rule. A
discussion of the comments is provided as follows:
A. Analysis of Public Comments
Comment: The respondent proposed that the clause at DFARS 252.225-
7039 be amended to require a contractor to demonstrate compliance with
the American National Standard, ANSI/ASIS PSC.1-2012, and/or the
International Standard, ISO 18788, by producing a valid certificate of
compliance from a nationally accredited certification body.
Response: DoD does not have the statutory authority to require a
certificate of compliance from a certification body accredited by a
national accreditation body. Section 833 of the National Defense
Authorization Act for Fiscal Year 2011 only authorized that the
Secretary of Defense ``may provide for the consideration of such
certifications as a factor in the evaluation of proposals for award of
a covered contract for the provision of private security functions.''
Therefore, no changes are made in the rule.
Comment: The respondent also proposed that the clause explicitly
state that the requirements of ANSI/ASIS PSC.1-2012 ``are incumbent
upon subcontractors on relevant DoD contracts.''
Response: The Government does not have privity of contract with
subcontractors. However, paragraph (f) of the clause requires
contractors to include the substance of the clause, to include
paragraph (c)(4) of the clause, in covered subcontracts. Paragraph
(c)(4) of
[[Page 42560]]
the clause requires compliance with ANSI/ASIS PSC.1-2012 or ISO 18788.
B. Other Changes
For consistency in use of terminology in DFARS clause 252.225-7039,
in paragraphs (c)(1) and (2), the term ``employees of the Contractor''
is removed and replaced with ``Contractor personnel'' in both places.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold and for Commercial Items, Including Commercially Available
Off-the Shelf Items
This rule amends the DFARS to consolidate all requirements for
contractors performing private security functions outside the United
States applicable to DoD contracts in the DFARS and makes changes
regarding applicability and high-level quality assurance standards.
DFARS clause 252.225-7039, Defense Contractors Performing Private
Security Functions Outside the United States, and its prescription at
DFARS 225.302-6 are amended. The revisions, however, do not affect
applicability of the clause at or below the simplified acquisition
threshold or to commercial item acquisitions.
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 not a significant regulatory action and, therefore, was not
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.
V. Regulatory Flexibility Act
A final regulatory flexibility analysis (FRFA) has been prepared
consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.
The FRFA is summarized as follows:
This final rule amends the Defense Federal Acquisition Regulation
Supplement (DFARS) to consolidate all requirements for DoD contractors
performing private security functions outside the U.S. from the FAR
25.302 and the clause at FAR 52.225-26, Contractors Performing Private
Security Functions Outside the Unites States, in DFARS 225.302 and the
clause at DFARS 252.225-7039, Defense Contractors Performing Private
Security Functions Outside the United States.
The objectives of this rule are as follows:
Provide DoD contracting officers and contractors a single
clause covering all requirements related to the performance of private
security functions outside the United States that may be updated by DoD
as policies are issued that affect only defense contractors.
Identify the international high-quality assurance standard
``ISO 18788: Management System for Private Security Operations'' as an
approved alternative to the American standard ``ANSI/ASIS PSC.1-2012''
currently required by DFARS clause 252.225-7039.
No comments were received from the public in response to the
initial regulatory flexibility analysis.
This final rule will apply to defense contractors performing
private security functions outside of the United States in designated
operational areas under DoD contracts. According to data available in
the Federal Procurement Data System for fiscal year (FY) 2013, DoD
awarded 159 contracts that required performance outside the United
States, although not necessarily in a designated operation area, and
cited the National American Industry Classification System code 561612,
Security Guards and Patrol Services, of which 33 contracts (21%) were
awarded to small businesses. In FY 2014, DoD awarded 123 such
contracts, of which 31 contracts (25%) were to small businesses.
The private security contractors are required to report incidents
when: (1) A weapon is discharged by personnel performing private
security functions; (2) personnel performing private security functions
are attacked, killed, or injured; (3) persons are killed or injured or
property is destroyed as a result of conduct by Contractor personnel;
(4) a weapon is discharged against personnel performing private
security functions or personnel performing such functions believe a
weapon was so discharged; or (5) 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. As a regular record keeping requirement, private
security contractors are required to keep appropriate records of
personnel by registering in the Synchronized Predeployment Operational
Tracker the equipment and weapons used by its personnel. The complexity
of the work to prepare these records requires the expertise equivalent
to that of a GS-11, step 5 with clerical and analytical skills to
create the documents.
There are no known significant alternatives to the rule. The impact
of this rule on small business is not expected to be significant.
VI. Paperwork Reduction Act
This rule contains information collection requirements under the
Paperwork Reduction Act (44 U.S.C. chapter 35). The Office of
Management and Budget (OMB) has assigned OMB Control Number 0704-0549,
entitled ``Defense Federal Acquisition Regulation Supplement (DFARS)
part 225, Foreign Acquisition, and Defense Contractors Performing
Private Security Functions Outside the United States.''
List of Subjects in 48 CFR Parts 216, 225, and 252
Government procurement.
Jennifer L. Hawes,
Editor, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 216, 225, and 252 are amended as follows:
0
1. The authority citation for 48 CFR parts 216, 225, and 252 continues
to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 216--TYPES OF CONTRACTS
216.405-2-71 [Amended]
0
2. In section 216.405-2-71, amend paragraph (b) by removing ``FAR
52.225-26, Contractors Preforming Private Security Functions'' and
adding ``252.225-7039, Defense Contractors Performing Private Security
Functions Outside the United States'' in its place.
PART 225--FOREIGN ACQUISITION
225.302-6 [Amended]
0
3. Amend section 225.302-6 introductory text by removing ``Outside the
United States,'' and adding ``Outside the United States, instead of FAR
clause 52.225-26, Contractors Performing Private Security Functions
Outside the United States,'' in its place.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
4. Amend section 252.225-7039 by--
0
a. Removing the clause date ``(JAN 2015)'' and adding ``(JUN 2016)'' in
its place;
[[Page 42561]]
0
b. Redesignating paragraphs (a) and (b) as paragraphs (c) and (f),
respectively;
0
c. Adding new paragraphs (a) and (b);
0
d. Revising newly redesignated paragraph (c);
0
e. Adding paragraphs (d) and (e);
0
f. In newly redesignated paragraph (f), removing ``paragraph (b)'' and
adding ``paragraph (f)'' in its place.
The additions and revision read as follows:
252.225-7039 Defense Contractors Performing Private Security Functions
Outside the United States.
* * * * *
(a) Definitions. As used in this clause--
Full cooperation--(1) Means disclosure to the Government of the
information sufficient to identify the nature and extent of the
incident and the individuals responsible for the conduct. It includes
providing timely and complete response to Government auditors' and
investigators' requests for documents and access to employees with
information;
(2) Does not foreclose any contractor rights arising in law, the
FAR or the terms of the contract. It does not require--
(i) The contractor to waive its attorney-client privilege or the
protections afforded by the attorney work product doctrine; or
(ii) Any officer, director, owner, or employee of the contractor,
including a sole proprietor, to waive his or her attorney-client
privilege or Fifth Amendment rights; and
(3) Does not restrict the contractor from--
(i) Conducting an internal investigation; or
(ii) Defending a proceeding or dispute arising under the contract
or related to a potential or disclosed violation.
Private security functions means the following activities engaged
in by a contractor:
(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. Designated areas are
areas outside the United States of--
(1) Contingency operations;
(2) Combat operations, as designated by the Secretary of Defense;
(3) Other significant military operations (as defined in 32 CFR
part 159), designated by the Secretary of Defense upon agreement of the
Secretary of State;
(4) Peace operations, consistent with Joint Publication 3-07.3; or
(5) Other military operations or military exercises, when
designated by the Combatant Commander.
(c) Requirements. The Contractor shall--
(1) Ensure that all Contractor personnel who are responsible for
performing private security functions under this contract comply with
32 CFR part 159 and any orders, directives, or 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, accounting for and registering in Synchronized
Predeployment and Operational Tracker (SPOT), weapons to be carried by
or available to be used by personnel performing private security
functions;
(iii) Identifying and registering in SPOT armored vehicles,
helicopters and other military vehicles operated by Contractors
performing private security functions; and
(iv) In accordance with orders and instructions established by the
applicable Combatant Commander, 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 Contractor personnel 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;
(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
Combatant Commander 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 Combatant
Commander or relevant Chief of Mission for personnel performing private
security functions;
(3) Provide full cooperation 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; and
(4) Comply with ANSI/ASIS PSC.1-2012, American National Standard,
Management System for Quality of Private Security Company Operations--
Requirements with Guidance or the International Standard ISO 18788,
Management System for Private Security Operations--Requirements with
Guidance (located at https://www.acq.osd.mil/log/PS/psc.html).
(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 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
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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.
* * * * *
[FR Doc. 2016-15247 Filed 6-29-16; 8:45 am]
BILLING CODE 5001-06-P
