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TITLE VIII--ACQUISITION POLICY, ACQUISITION MANAGEMENT, AND RELATED MATTERS

Subtitle D--Contractor Matters

P. L. 111-

Joint Explanatory Statement of the Committees on Armed Services of the U. S. Senate and House of Representatives on H. R. 6523

From H. R. 6523

SEC. 831. OVERSIGHT AND ACCOUNTABILITY OF CONTRACTORS PERFORMING PRIVATE SECURITY FUNCTIONS IN AREAS OF COMBAT OPERATIONS.

(a) Enhancement of Oversight and Accountability- Section 862 of the National Defense Authorization Act for Fiscal Year 2008 (Public Law 110-181; 10 U.S.C. 2302 note) is amended--

(1) in subsection (b)(2)--

(A) in subparagraph (A), by striking `comply with regulations' and inserting `ensure that the contractor and all employees of the contractor or any subcontractor who are responsible for performing private security functions under such contract comply with regulations';

(B) in subparagraph (B)--

(i) by striking `comply with' and all that follows through `in accordance with' and inserting `ensure that the contractor and all employees of the contractor or any subcontractor who are responsible for performing private security functions under such contract comply with'; and

(ii) by striking `and' at the end;

(C) in subparagraph (C), by striking the period at the end and inserting `; and'; and

(D) by adding at the end the following new subparagraph:

`(D) ensure that the contract clause is included in subcontracts awarded to any subcontractor at any tier who is responsible for performing private security functions under the contract.';

(2) by redesignating subsections (c) and (d) as subsections (f) and (g), respectively; and

(3) by inserting after subsection (b) the following new subsections:

`(c) Oversight- It shall be the responsibility of the head of the contracting activity responsible for each covered contract to ensure that the contracting activity takes appropriate steps to assign sufficient oversight personnel to the contract to--

`(1) ensure that the contractor responsible for performing private security functions under such contract comply with the regulatory requirements prescribed pursuant to subsection (a) and the contract requirements established pursuant to subsection (b); and

`(2) make the determinations required by subsection (d).

`(d) Remedies- The failure of a contractor under a covered contract to comply with the requirements of the regulations prescribed under subsection (a) or the contract clause inserted in a covered contract pursuant to subsection (b), as determined by the contracting officer for the covered contract--

`(1) shall be included in appropriate databases of past performance and considered in any responsibility determination or evaluation of the past performance of the contractor for the purpose of a contract award decision, as provided in section 6(j) of the Office of Federal Procurement Policy Act (41 U.S.C. 405(j));

`(2) in the case of an award fee contract--

`(A) shall be considered in any evaluation of contract performance by the contractor for the relevant award fee period; and

`(B) may be 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; and

`(3) in the case of a failure to comply that is severe, prolonged, or repeated--

`(A) shall be referred to the suspension or debarment official for the appropriate agency; and

`(B) may be a basis for suspension or debarment of the contractor.

`(e) Rule of Construction- The duty of a contractor under a covered contract to comply with the requirements of the regulations prescribed under subsection (a) and the contract clause inserted into a covered contract pursuant to subsection (b), and the availability of the remedies provided in subsection (d), shall not be reduced or diminished by the failure of a higher or lower tier contractor under such contract to comply with such requirements, or by a failure of the contracting activity to provide the oversight required by subsection (c).'.

(b) Revised Regulations and Contract Clause-

(1) DEADLINE FOR REGULATIONS- Not later than 60 days after the date of the enactment of this Act, the Secretary of Defense shall revise the regulations prescribed pursuant to section 862 of the National Defense Authorization Act for Fiscal Year 2008 (Public Law 110-181; 10 U.S.C. 2302 note) to incorporate the requirements of the amendments made by subsection (a).

(2) COMMENCEMENT OF APPLICABILITY OF REVISIONS- The revision of regulations under paragraph (1) shall apply to the following:

(A) Any contract that is awarded on or after the date that is 120 days after the date of the enactment of this Act.

(B) Any task or delivery order that is issued on or after the date that is 120 days after the date of the enactment of this Act pursuant to a contract that is awarded before, on, or after the date that is 120 days after the date of the enactment of this Act.

(3) COMMENCEMENT OF INCLUSION OF CONTRACT CLAUSE- A contract clause that reflects the revision of regulations required by the amendments made by subsection (a) shall be inserted, as required by such section 862, into the following:

(A) Any contract described in paragraph (2)(A).

(B) Any task or delivery order described in paragraph (2)(B).

From S. 3454, National Defense Authorization Act for Fiscal Year 2011

SEC. 842. OVERSIGHT AND ACCOUNTABILITY OF CONTRACTORS PERFORMING PRIVATE SECURITY FUNCTIONS IN AREAS OF COMBAT OPERATIONS.

(a) Enhancement of Oversight and Accountability- Section 862 of the National Defense Authorization Act for Fiscal Year 2008 (10 U.S.C. 2302 note) is amended--

(1) in subsection (b)(2)--

(A) in subparagraph (A), by striking `comply with regulations' and inserting `ensure that the contractor and all employees of the contractor or any subcontractor who are responsible for performing private security functions under such contract comply with regulations';

(B) in subparagraph (B)--

(i) by striking `comply with' and all that follows through `in accordance with' and inserting `ensure that the contractor and all employees of the contractor or any subcontractor who are responsible for performing private security functions under such contract comply with'; and

(ii) by striking `and' at the end;

(C) in subparagraph (C), by striking the period at the end and inserting `; and'; and

(D) by adding at the end the following new subparagraph:

`(D) ensure that the contract clause is included in subcontracts awarded to any subcontractor at any tier who is responsible for performing private security functions under the contract.';

(2) by redesignating subsections (c) and (d) as subsections (f) and (g), respectively; and

(3) by inserting after subsection (b) the following new subsections:

`(c) Oversight- It shall be the responsibility of the head of the contracting activity responsible for each covered contract to ensure that the contracting activity takes appropriate steps to assign sufficient oversight personnel to the contract to--

`(1) ensure that the contractor and any subcontractors responsible for performing private security functions under such contract comply with the regulatory requirements prescribed pursuant to subsection (a) and the contract requirements established pursuant to subsection (b); and

`(2) make the determinations required by subsection (d).

`(d) Remedies- The failure of a contractor or subcontractor under a covered contract to comply with the requirements of the regulations prescribed under subsection (a) or the contract clause inserted in a covered contract pursuant to subsection (b), as determined by the contracting officer for the covered contract--

`(1) shall be included in appropriate databases of past performance and considered in any responsibility determination or evaluation of the past performance of the contractor or subcontractor for the purpose of a contract award decision, as provided in section 6(j) of the Office of Federal Procurement Policy Act (41 U.S.C. 405(j));

`(2) in the case of an award fee contract--

`(A) shall be considered in any evaluation of contract performance by the contractor or subcontractor for the relevant award fee period; and

`(B) may be 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; and

`(3) in the case of a failure to comply that is severe, prolonged, or repeated--

`(A) shall be referred to the suspension or debarment official for the appropriate agency; and

`(B) may be a basis for suspension or debarment of the contractor or subcontractor.

`(e) Rule of Construction- The duty of a contractor or subcontractor under a covered contract to comply with the requirements of the regulations prescribed under subsection (a) and the contract clause inserted into a covered contract pursuant to subsection (b), and the availability of the remedies provided in subsection (d), shall not be reduced or diminished by the failure of a higher or lower tier contractor under such contract to comply with such requirements, or by a failure of the contracting activity to provide the oversight required by subsection (c).'.

(b) Revised Regulations and Contract Clause-

(1) DEADLINE FOR REGULATIONS- Not later than 60 days after the date of the enactment of this Act, the Secretary of Defense shall revise the regulations prescribed pursuant to section 862 of the National Defense Authorization Act for Fiscal Year 2008 to incorporate the requirements of the amendments made by subsection (a).

(2) COMMENCEMENT OF APPLICABILITY OF REVISIONS- The revision of regulations under paragraph (1) shall apply to the following:

(A) Any contract that is awarded on or after the date that is 120 days after the date of the enactment of this Act.

(B) Any task or delivery order that is entered on or after the date that is 120 days after the date of the enactment of this Act pursuant to a contract that is awarded before, on, or after the date that is 120 days after the date of the enactment of this Act.

(3) COMMENCEMENT OF INCLUSION OF CONTRACT CLAUSE- A contract clause that reflects the revision of regulations required by the amendments made by subsection (a) shall be inserted, as required by required by such section 862, into the following:

(A) Any contract that is awarded on or after the date that is 120 days after the date of the enactment of this Act.

(B) Any task or delivery order that is entered on or after the date that is 120 days after the date of the enactment of this Act pursuant to a contract that is awarded before, on, or after the date that is 120 days after the date of the enactment of this Act.

The Senate committee-reported bill contained a provision (sec. 842) that would establish new oversight and accountability mechanisms for contactors performing private security functions in areas of combat operations.

The House bill contained no similar provision.

The agreement includes the Senate provision with a clarifying amendment.

From S. Rpt. 111-201, to accompany S. 3454, NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2011

Oversight and accountability of contractors performing private security functions in areas of combat operations (sec. 842)

The committee recommends a provision that would: (1) require contracting activities to assign an appropriate number of personnel to the oversight of contractors performing private security functions in areas of combat operations; and (2) provide new measures to ensure the accountability of such contractors for any failure by their employees or subcontractors to comply with the requirements of law or regulation, or with directives from combatant commanders.

The senior United States commander on the ground in Afghanistan has expressed serious concerns about the use of private security contractors in that country and stressed that private security functions should be placed under the direct control of the Government of Afghanistan or be legitimate coalition forces. The committee directs the Secretary of Defense to report to the congressional defense committees by no later than December 1, 2010, on steps that the Department has taken or plans to take, if any, to reduce its use of private security contractors in Afghanistan.