[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
[[Page 37672]]
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:
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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]
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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
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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 http://www.acq.osd.mil/dpap/pacc/cc/designated_areas_of_other_significant_military_operations.html and http://www.acq.osd.mil/dpap/pacc/cc/designated_areas_of_combat_operations.html.
(d) When the applicability requirements of this subsection are met,
contractors and subcontractors must comply with 32 CFR part 159,
whether the contract is for the performance of private security
functions as a primary deliverable or the 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