Federal Acquisition Regulation: Contractors Performing Private Security Functions, 67776-67778 [2016-23203]
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67776
Federal Register / Vol. 81, No. 190 / Friday, September 30, 2016 / Rules and Regulations
9. Amend section 52.225–23 by—
a. Revising the date of the clause; and
b. Removing from paragraph (a), in the
definition ‘‘Designated country’’,
paragraph (1) the words ‘‘Malta,’’ and
‘‘Taiwan,’’ and adding ‘‘Malta,
Moldova,’’ and ‘‘Taiwan, Ukraine,’’ in
their places, respectively; and
■ c. Removing from paragraph (a), in the
definition ‘‘Recovery Act designated
country’’, paragraph (1) the words
‘‘Malta,’’ and ‘‘Taiwan,’’ and adding
‘‘Malta, Moldova,’’ and ‘‘Taiwan,
Ukraine,’’ in their places, respectively.
The revision reads as follows:
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52.225–23 Required Use of American Iron,
Steel, and Manufactured Goods—Buy
American Statute—Construction Materials
Under Trade Agreements.
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Required Use of American Iron, Steel,
and Manufactured Goods—Buy
American Statute—Construction
Materials Under Trade Agreements
(Oct 2016)
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[FR Doc. 2016–23202 Filed 9–29–16; 8:45 am]
BILLING CODE 6820–EP–P
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
clarification of content. For information
pertaining to status or publication
schedules, contact the Regulatory
Secretariat at 202–501–4755. Please cite
FAC 2005–91, FAR Case 2014–018.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA published a
proposed rule in the Federal Register at
80 FR 30202 on May 27, 2015, to
implement section 862 of the National
Defense Authorization Act (NDAA) for
Fiscal Year (FY) 2008 (Pub. L. 110–181)
(as amended by other NDAAs, see 10
U.S.C. 2302 Note). This rule amends
FAR 25.302, Contractors performing
private security functions outside the
United States, and the associated clause
at 52.225–26 to remove the DoD-unique
requirements, which were incorporated
in the Defense Federal Acquisition
Regulation Supplement (DFARS) on
June 30, 2016 (81 FR 42559). This rule
also adds the definition of ‘‘full
cooperation’’ to FAR clause 52.225–26
in order to affirm that the contract
clause does not foreclose any contractor
rights arising in law, the FAR, or the
terms of the contract when cooperating
with any Government-authorized
investigation into incidents reported
pursuant to the clause.
One respondent submitted comments
on the proposed rule.
II. Discussion and Analysis
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
The Civilian Agency Acquisition
Council and the Defense Acquisition
Regulations Council (the Councils)
reviewed the public comment in the
development of the final rule.
48 CFR Parts 25 and 52
[FAC 2005–91; FAR Case 2014–018; Item
IX; Docket No. 2014–0018, Sequence No.
1]
A. Summary of Significant Changes
RIN 9000–AN07
There were no changes made to the
rule as a result of the one comment
received. There were no comments on
the Regulatory Flexibility Analysis.
Federal Acquisition Regulation:
Contractors Performing Private
Security Functions
AGENCY:
B. Analysis of Public Comments
DoD, GSA, and NASA are
issuing a final rule amending the
Federal Acquisition Regulation (FAR) to
remove the DoD-unique requirements
for contractors performing private
security functions outside the United
States and provide a definition of ‘‘full
cooperation’’ within the associated
clause.
A discussion of the comment follows:
Employing quasi-military armed
forces:
Comment: The respondent did not
comment on any of the proposed
changes in the proposed rule. The
respondent commented on the alleged
employment of mercenaries by
contractors performing private security
functions overseas and further stated
that this is prohibited as codified at 5
U.S.C. 3181. The respondent
recommended a change to the FAR to
make it clear that the U.S. Government
will not employ mercenaries.
Response: The respondent’s
comments are not within the scope of
this rule.
Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Final rule.
asabaliauskas on DSK3SPTVN1PROD with RULES
SUMMARY:
DATES:
Effective: October 31, 2016.
FOR FURTHER INFORMATION CONTACT:
Mr.
Michael O. Jackson, Procurement
Analyst, at 202–208–4949, for
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III. 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.
IV. 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 objective of this rule is to amend FAR
25.302, Contractors performing private
security functions outside the United States,
and the associated clause at 52.225–26 to
remove the DoD-unique requirements, which
will be incorporated in the Defense Federal
Acquisition Regulation Supplement
(DFARS). The rule also adds a definition of
‘‘full cooperation’’ to FAR clause 52.225–26
in order to affirm that the contract clause
does not foreclose any contractor rights
arising in law, the FAR, or the terms of the
contract when cooperating with any
Government-authorized investigation into
incidents reported pursuant to the clause.
No comments were received from the
public relative to the initial regulatory
flexibility analysis.
DoD, GSA, and NASA do not expect this
final rule to have a significant economic
impact on a substantial number of small
entities within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq. Based on
data available in the Federal Procurement
Data System (FPDS), DoD awarded 403
contracts in FY 2013 in support of a
designated contingency operation outside of
the United States, of which 63 contracts (15.6
percent) were awarded to small businesses.
Therefore, it is estimated that this rule will
apply to approximately 63 small businesses.
This rule does not create any new
reporting, recordkeeping, or other
compliance requirements.
There are no known significant alternatives
to the rule. The impact of this rule on small
business is not expected to be significant
because it is removing DoD-unique
requirements from the FAR, to be
incorporated in the DFARS.
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
E:\FR\FM\30SER4.SGM
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Federal Register / Vol. 81, No. 190 / Friday, September 30, 2016 / Rules and Regulations
Chief Counsel for Advocacy of the Small
Business Administration.
V. Paperwork Reduction Act
This rule does not affect the
information collection requirements in
FAR clause 52.225–26, currently
approved under OMB Control Number
9000–0184, titled: Contractors
Performing Private Security Functions
Outside the United States, in
accordance with the Paperwork
Reduction Act (44 U.S.C. chapter 35).
The estimated total annual public hour
and cost burden in OMB control number
9000–0184 was calculated based on data
for the contracts and subcontracts of
non-DoD agencies, because DoD’s
information collection was previously
approved under OMB control number
0704–0460. Therefore, removing the
DoD-unique requirements from the FAR
does not impact the approved estimates
for OMB clearance 9000–0184.
List of Subject in 48 CFR Parts 25 and
52
Government procurement.
Dated: September 19, 2016.
William F. Clark,
Director, Office of Government-wide
Acquisition Policy, Office of Acquisition
Policy, Office of Government-wide Policy.
Therefore, DoD, GSA, and NASA
amend 48 CFR parts 25 and 52 as set
forth below:
■ 1. The authority citation for 48 CFR
parts 25 and 52 continues to read as
follows:
2. Amend section 25.302–2 by
removing from the definition ‘‘Other
significant military operations’’ the
phrase ‘‘(see 25.302–3(b)(2)).’’ and
adding ‘‘(see 25.302–3(a)(2)).’’ in its
place.
■ 3. Amend section 25.302–3 by—
■ a. Revising paragraph (a);
■ b. Removing paragraph (b); and
■ c. Redesignating paragraphs (c)
through (e) as paragraphs (b) through
(d), respectively.
The revision reads as follows:
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25.302–6
52.213–4 Terms and Conditions—
Simplified Acquisitions (Other Than
Commercial Items).
Contract clause.
(a) Use the clause at 52.225–26,
Contractors Performing Private Security
Functions Outside the United States, in
solicitations and contracts for
performance outside the United States
in an area of—
(1) Combat operations, as designated
by the Secretary of Defense; or
(2) 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.
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Contract Terms and Conditions Required To
Implement Statutes or Executive Orders—
Commercial Items (Oct 2016)
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(a) This section applies to contracts
that require performance outside the
United States—
(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
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4. Amend section 25.302–4 by—
a. Removing from paragraph (a)(1)
‘‘(PSCs) Operating in Contingency
Operations, Combat Operations, or
Other Significant Military Operations’’
and adding ‘‘Operating in Contingency
Operations’’ in its place; and
■ b. Removing from paragraph (a)(2) ‘‘to
cooperate’’ and adding ‘‘to fully
cooperate’’ in its place.
■ 5. Amend section 25.302–6 by
revising paragraph (a) to read as follows:
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52.212–5 Contract Terms and Conditions
Required To Implement Statutes or
Executive Orders—Commercial Items.
Applicability.
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Alternate II (Oct 2016). * * *
6. Amend section 52.212–5 by—
a. Revising the date of the clause,
paragraphs (b)(51) and (e)(1)(xviii); and
■ b. Amending Alternate II by—
■ 1. Revising the date of Alternate II;
■ 2. Redesignating paragraphs
(e)(1)(ii)(O) through (R) as paragraphs
(e)(1)(ii)(P) through (S), respectively;
and
■ 3. Adding a new paragraph
(e)(1)(ii)(T).
The revisions read as follows:
[Amended]
United States (Oct 2016) (Section 862, as
amended, of the National Defense
Authorization Act for Fiscal Year 2008; 10
U.S.C. 2302 Note).
[Amended]
■
■
PART 25—FOREIGN ACQUISITION
25.302–3
25.302–4
PART 52—SOLICITATION PROVISIONS
AND CONTRACT CLAUSES
Authority: 40 U.S.C. 121(c); 10 U.S.C.
chapter 137; and 51 U.S.C. 20113.
25.302–2
Secretary of Defense, and only upon
agreement of the Secretary of Defense
and the Secretary of State.
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67777
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(b) * * *
l (51) 52.225–26, Contractors Performing
Private Security Functions Outside the
United States (Oct 2016) (Section 862, as
amended, of the National Defense
Authorization Act for Fiscal Year 2008; 10
U.S.C. 2302 Note).
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(e)(1) * * *
(xviii) 52.225–26, Contractors Performing
Private Security Functions Outside the
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(e)(1) * * *
(ii) * * *
(T) 52.225–26, Contractors Performing
Private Security Functions Outside the
United States (Oct 2016) (Section 862, as
amended, of the National Defense
Authorization Act for Fiscal Year 2008; 10
U.S.C. 2302 Note).
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7. Amend section 52.213–4 by
revising the date of the clause and
paragraph (a)(2)(viii) to read as follows:
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Terms and Conditions—Simplified
Acquisitions (Other Than Commercial Items)
(Oct 2016)
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(a) * * *
(2) * * *
(viii) 52.244–6, Subcontracts for
Commercial Items (Oct 2016).
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■ 8. Amend section 52.225–26 by—
■ a. Revising the introductory text and
the date of the clause;
■ b. Revising the introductory text of
paragraph (a); and adding in
alphabetical order, the definitions ‘‘Area
of combat operations’’, ‘‘Full
cooperation’’, and ‘‘Other significant
military operations’’;
■ c. Revising paragraph (b);
■ d. Removing from paragraph (c)(2)(i)
‘‘(PSCs) Operating in Contingency
Operations, Combat Operations, or
Other Significant Military Operations’’
and adding ‘‘Operating in Contingency
Operations’’ in its place;
■ e. Removing from paragraph (c)(3)
‘‘Cooperate’’ and adding ‘‘Provide full
cooperation’’ in its place; and
■ f. Revising paragraph (f).
The revisions 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 (Oct
2016)
(a) Definitions. As used in this clause—
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.
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Federal Register / Vol. 81, No. 190 / Friday, September 30, 2016 / Rules and Regulations
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
responses 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 attorneyclient 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.
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.
Authorization Act for Fiscal Year 2008; 10
U.S.C. 2302 Note).
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SUMMARY:
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(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 following
designated areas—
(1) Combat operations, as designated by the
Secretary of Defense; or
(2) 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.
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(f) Subcontracts. The Contractor shall
include the substance of this clause,
including this paragraph (f), in all
subcontracts that will be performed outside
the United States in areas of—
(1) Combat operations, as designated by the
Secretary of Defense; or
(2) Other significant military operations,
upon agreement of the Secretaries of Defense
and State that the clause applies in that area.
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9. Amend section 52.244–6 by
revising the date of the clause and
paragraph (c)(1)(xv) to read as follows:
■
52.244–6
Items.
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Subcontracts for Commercial
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Subcontracts for Commercial Items (Oct
2016)
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(c) * * *
(1) * * *
(xv) 52.225–26, Contractors Performing
Private Security Functions Outside the
United States (Oct 2016) (Section 862, as
amended, of the National Defense
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[FR Doc. 2016–23203 Filed 9–29–16; 8:45 am]
BILLING CODE 6820–EP–P
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Part 31
[FAC 2005–91; FAR Case 2014–012; Item
X; Docket No. 2014–0012; Sequence No. 1]
RIN 9000–AM75
Federal Acquisition Regulation:
Limitation on Allowable Government
Contractor Employee Compensation
Costs
Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Final rule.
AGENCY:
DoD, GSA and NASA are
adopting as final, with changes, an
interim rule amending the Federal
Acquisition Regulation (FAR) to
implement a section of the Bipartisan
Budget Act of 2013. The final rule
revises the allowable cost limit relative
to the compensation of contractor and
subcontractor employees. Also, this
final rule implements the narrowly
targeted exception to this allowable cost
limit for scientists, engineers, or other
specialists upon an agency
determination that such exceptions are
needed to ensure that the executive
agency has continued access to needed
skills and capabilities.
DATES: Effective: September 30, 2016.
FOR FURTHER INFORMATION CONTACT: Ms.
Kathlyn J. Hopkins, Procurement
Analyst, at 202–969–7226, for
clarification of content. For information
pertaining to status or publication
schedules, contact the Regulatory
Secretariat Division at 202–501–4755.
Please cite FAC 2005–91, FAR Case
2014–012.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA published an
interim rule in the Federal Register at
79 FR 35865 on June 24, 2014, to
implement section 702 of The
Bipartisan Budget Act of 2013 (Pub. L.
113–67), which amended the allowable
cost limits of contractor and
subcontractor employee compensation.
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Specifically, section 702 revised the
application of the compensation cap,
the amount of the cap, and the
associated formula for annually
adjusting it. The existing formula for
determining the limit on the
allowability of contractor and
subcontractor employee compensation
costs under 41 U.S.C. 1127 was repealed
for contracts awarded on or after June
24, 2014. Section 702 of the law set the
initial limitation on allowable
contractor and subcontractor employee
compensation costs at $487,000 per
year, which will be adjusted annually to
reflect the change in the Employment
Cost Index for all workers as calculated
by the Bureau of Labor Statistics. This
final rule also implements the authority
provided by 10 U.S.C. 2324(e)(1)(P) and
41 U.S.C. 4304(a)(16), as amended by
section 702(a), in which Congress has
authorized the heads of Executive
agencies to establish ‘‘one or more
narrowly targeted exceptions for
scientists, engineers, or other specialists
upon a determination that such
exceptions are needed to ensure that the
executive agency has continued access
to needed skills and capabilities.’’
II. Discussion and Analysis
The Civilian Agency Acquisition
Council and the Defense Acquisition
Regulations Council (the Councils)
reviewed the public comments in the
development of the final rule. A
discussion of the comments is provided
as follows:
A. Summary of Significant Changes
This final rule adopts the interim rule
with four changes for clarification.
• The first clarification entails the
addition of a table to FAR 31.205–6(p)
that summarizes the applicability dates
contained in this FAR section.
• The second clarification concerns
the reorganization of the FAR text.
Existing FAR paragraph 31.205–6(p)(4)
has become new paragraph (p)(1), with
existing paragraph (p)(1) becoming new
paragraph (p)(2). Existing FAR
paragraphs 31.205–6(p)(2) and (p)(3)
have become new paragraphs (p)(3) and
(p)(4), respectively.
• The third clarification entails the
removal of the following redundant FAR
31.205–6 text:
Æ Paragraph (p)(2)(ii) text ‘‘Costs
incurred after January 1, 1998.’’
Æ Paragraph (p)(3)(ii) text ‘‘Costs
incurred after January 1, 2012.’’
Æ Paragraph (p)(4)(ii) text ‘‘Costs
incurred on or after June 24, 2014.’’
• The fourth clarification entails
reference links in paragraphs (p)(2) and
(p)(3) (see https://www.whitehouse.gov/
omb/procurement_index_exec_comp/)
E:\FR\FM\30SER4.SGM
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]]>Agencies
[Federal Register Volume 81, Number 190 (Friday, September 30, 2016)]
[Rules and Regulations]
[Pages 67776-67778]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-23203]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 25 and 52
[FAC 2005-91; FAR Case 2014-018; Item IX; Docket No. 2014-0018,
Sequence No. 1]
RIN 9000-AN07
Federal Acquisition Regulation: Contractors Performing Private
Security Functions
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: DoD, GSA, and NASA are issuing a final rule amending the
Federal Acquisition Regulation (FAR) to remove the DoD-unique
requirements for contractors performing private security functions
outside the United States and provide a definition of ``full
cooperation'' within the associated clause.
DATES: Effective: October 31, 2016.
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 2005-91, FAR Case 2014-
018.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA published a proposed rule in the Federal
Register at 80 FR 30202 on May 27, 2015, to implement section 862 of
the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2008
(Pub. L. 110-181) (as amended by other NDAAs, see 10 U.S.C. 2302 Note).
This rule amends FAR 25.302, Contractors performing private security
functions outside the United States, and the associated clause at
52.225-26 to remove the DoD-unique requirements, which were
incorporated in the Defense Federal Acquisition Regulation Supplement
(DFARS) on June 30, 2016 (81 FR 42559). This rule also adds the
definition of ``full cooperation'' to FAR clause 52.225-26 in order to
affirm that the contract clause does not foreclose any contractor
rights arising in law, the FAR, or the terms of the contract when
cooperating with any Government-authorized investigation into incidents
reported pursuant to the clause.
One respondent submitted comments on the proposed rule.
II. Discussion and Analysis
The Civilian Agency Acquisition Council and the Defense Acquisition
Regulations Council (the Councils) reviewed the public comment in the
development of the final rule.
A. Summary of Significant Changes
There were no changes made to the rule as a result of the one
comment received. There were no comments on the Regulatory Flexibility
Analysis.
B. Analysis of Public Comments
A discussion of the comment follows:
Employing quasi-military armed forces:
Comment: The respondent did not comment on any of the proposed
changes in the proposed rule. The respondent commented on the alleged
employment of mercenaries by contractors performing private security
functions overseas and further stated that this is prohibited as
codified at 5 U.S.C. 3181. The respondent recommended a change to the
FAR to make it clear that the U.S. Government will not employ
mercenaries.
Response: The respondent's comments are not within the scope of
this rule.
III. 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.
IV. 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 objective of this rule is to amend FAR 25.302, Contractors
performing private security functions outside the United States, and
the associated clause at 52.225-26 to remove the DoD-unique
requirements, which will be incorporated in the Defense Federal
Acquisition Regulation Supplement (DFARS). The rule also adds a
definition of ``full cooperation'' to FAR clause 52.225-26 in order
to affirm that the contract clause does not foreclose any contractor
rights arising in law, the FAR, or the terms of the contract when
cooperating with any Government-authorized investigation into
incidents reported pursuant to the clause.
No comments were received from the public relative to the
initial regulatory flexibility analysis.
DoD, GSA, and NASA do not expect this final rule to have a
significant economic impact on a substantial number of small
entities within the meaning of the Regulatory Flexibility Act, 5
U.S.C. 601, et seq. Based on data available in the Federal
Procurement Data System (FPDS), DoD awarded 403 contracts in FY 2013
in support of a designated contingency operation outside of the
United States, of which 63 contracts (15.6 percent) were awarded to
small businesses. Therefore, it is estimated that this rule will
apply to approximately 63 small businesses.
This rule does not create any new reporting, recordkeeping, or
other compliance requirements.
There are no known significant alternatives to the rule. The
impact of this rule on small business is not expected to be
significant because it is removing DoD-unique requirements from the
FAR, to be incorporated in the DFARS.
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
[[Page 67777]]
Chief Counsel for Advocacy of the Small Business Administration.
V. Paperwork Reduction Act
This rule does not affect the information collection requirements
in FAR clause 52.225-26, currently approved under OMB Control Number
9000-0184, titled: Contractors Performing Private Security Functions
Outside the United States, in accordance with the Paperwork Reduction
Act (44 U.S.C. chapter 35). The estimated total annual public hour and
cost burden in OMB control number 9000-0184 was calculated based on
data for the contracts and subcontracts of non-DoD agencies, because
DoD's information collection was previously approved under OMB control
number 0704-0460. Therefore, removing the DoD-unique requirements from
the FAR does not impact the approved estimates for OMB clearance 9000-
0184.
List of Subject in 48 CFR Parts 25 and 52
Government procurement.
Dated: September 19, 2016.
William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of
Acquisition Policy, Office of Government-wide Policy.
Therefore, DoD, GSA, and NASA amend 48 CFR parts 25 and 52 as set
forth below:
0
1. The authority citation for 48 CFR parts 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 25--FOREIGN ACQUISITION
25.302-2 [Amended]
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2. Amend section 25.302-2 by removing from the definition ``Other
significant military operations'' the phrase ``(see 25.302-3(b)(2)).''
and adding ``(see 25.302-3(a)(2)).'' in its place.
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3. Amend section 25.302-3 by--
0
a. Revising paragraph (a);
0
b. Removing paragraph (b); and
0
c. Redesignating paragraphs (c) through (e) as paragraphs (b) through
(d), respectively.
The revision reads as follows:
25.302-3 Applicability.
(a) This section applies to contracts that require performance
outside the United States--
(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.
* * * * *
25.302-4 [Amended]
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4. Amend section 25.302-4 by--
0
a. Removing from paragraph (a)(1) ``(PSCs) Operating in Contingency
Operations, Combat Operations, or Other Significant Military
Operations'' and adding ``Operating in Contingency Operations'' in its
place; and
0
b. Removing from paragraph (a)(2) ``to cooperate'' and adding ``to
fully cooperate'' in its place.
0
5. Amend section 25.302-6 by revising paragraph (a) to read as follows:
25.302-6 Contract clause.
(a) Use the clause at 52.225-26, Contractors Performing Private
Security Functions Outside the United States, in solicitations and
contracts for performance outside the United States in an area of--
(1) Combat operations, as designated by the Secretary of Defense;
or
(2) 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.
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
6. Amend section 52.212-5 by--
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a. Revising the date of the clause, paragraphs (b)(51) and
(e)(1)(xviii); and
0
b. Amending Alternate II by--
0
1. Revising the date of Alternate II;
0
2. Redesignating paragraphs (e)(1)(ii)(O) through (R) as paragraphs
(e)(1)(ii)(P) through (S), respectively; and
0
3. Adding a new paragraph (e)(1)(ii)(T).
The revisions read 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 (Oct 2016)
* * * * *
(b) * * *
_ (51) 52.225-26, Contractors Performing Private Security
Functions Outside the United States (Oct 2016) (Section 862, as
amended, of the National Defense Authorization Act for Fiscal Year
2008; 10 U.S.C. 2302 Note).
* * * * *
(e)(1) * * *
(xviii) 52.225-26, Contractors Performing Private Security
Functions Outside the United States (Oct 2016) (Section 862, as
amended, of the National Defense Authorization Act for Fiscal Year
2008; 10 U.S.C. 2302 Note).
* * * * *
Alternate II (Oct 2016). * * *
* * * * *
(e)(1) * * *
(ii) * * *
(T) 52.225-26, Contractors Performing Private Security Functions
Outside the United States (Oct 2016) (Section 862, as amended, of
the National Defense Authorization Act for Fiscal Year 2008; 10
U.S.C. 2302 Note).
* * * * *
0
7. Amend section 52.213-4 by revising the date of the clause and
paragraph (a)(2)(viii) to read as follows:
52.213-4 Terms and Conditions--Simplified Acquisitions (Other Than
Commercial Items).
* * * * *
Terms and Conditions--Simplified Acquisitions (Other Than Commercial
Items) (Oct 2016)
* * * * *
(a) * * *
(2) * * *
(viii) 52.244-6, Subcontracts for Commercial Items (Oct 2016).
* * * * *
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8. Amend section 52.225-26 by--
0
a. Revising the introductory text and the date of the clause;
0
b. Revising the introductory text of paragraph (a); and adding in
alphabetical order, the definitions ``Area of combat operations'',
``Full cooperation'', and ``Other significant military operations'';
0
c. Revising paragraph (b);
0
d. Removing from paragraph (c)(2)(i) ``(PSCs) Operating in Contingency
Operations, Combat Operations, or Other Significant Military
Operations'' and adding ``Operating in Contingency Operations'' in its
place;
0
e. Removing from paragraph (c)(3) ``Cooperate'' and adding ``Provide
full cooperation'' in its place; and
0
f. Revising paragraph (f).
The revisions 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 (Oct 2016)
(a) Definitions. As used in this clause--
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.
[[Page 67778]]
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 responses 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.
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.
* * * * *
(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 following designated areas--
(1) Combat operations, as designated by the Secretary of
Defense; or
(2) 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.
* * * * *
(f) Subcontracts. The Contractor shall include the substance of
this clause, including this paragraph (f), in all subcontracts that
will be performed outside the United States in areas of--
(1) Combat operations, as designated by the Secretary of
Defense; or
(2) Other significant military operations, upon agreement of the
Secretaries of Defense and State that the clause applies in that
area.
* * * * *
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9. Amend section 52.244-6 by revising the date of the clause and
paragraph (c)(1)(xv) to read as follows:
52.244-6 Subcontracts for Commercial Items.
* * * * *
Subcontracts for Commercial Items (Oct 2016)
* * * * *
(c) * * *
(1) * * *
(xv) 52.225-26, Contractors Performing Private Security
Functions Outside the United States (Oct 2016) (Section 862, as
amended, of the National Defense Authorization Act for Fiscal Year
2008; 10 U.S.C. 2302 Note).
[FR Doc. 2016-23203 Filed 9-29-16; 8:45 am]
BILLING CODE 6820-EP-P
