[Federal Register Volume 77, Number 141 (Monday, July 23, 2012)]
[Proposed Rules]
[Pages 43039-43044]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-17477]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 1, 25, and 52
[FAR Case 2011-029; Docket No. 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: Proposed rule.
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SUMMARY: The DoD, GSA, and NASA are proposing to amend 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: Interested parties should submit written comments to the
Regulatory Secretariat on or before September 21, 2012 to be considered
in the formulation of a final rule.
ADDRESSES: Submit comments identified by FAR case 2011-029 by any of
the following methods:
Regulations.gov: http://www.regulations.gov.
Submit comments via the Federal eRulemaking portal by searching for
``FAR Case 2011-029'' under the heading ``Comment or Submission''.
Select the link ``Send a Comment or Submission'' that corresponds with
FAR Case 2011-029. Follow the instructions provided to complete the
``Public Comment and Submission Form''. Please include your name,
company name (if any), and ``FAR Case 2011-029'' on your attached
document.
Fax: 202-501-4067.
Mail: General Services Administration, Regulatory
Secretariat (MVCB), Attn: Hada Flowers, 1275 First Street NE., 7th
Floor, Washington, DC 20417.
Instructions: Please submit comments only and cite FAR case 2011-
029 in all correspondence related to this case. All comments received
will be posted without change to http://www.regulations.gov, including
any personal and/or business confidential information provided.
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 FAR case 2011-029.
SUPPLEMENTARY INFORMATION:
I. Background
The National Defense Authorization Act (NDAA) for Fiscal Year (FY)
2008 (Pub. L. 110-181, enacted January 28, 2008), section 862, entitled
``Contractors Performing Private Security Functions in Areas of Combat
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 requires (1) the establishment of
Governmentwide policies and (2) FAR coverage implementing the
Governmentwide policies specified in the statutes and the resulting
Governmentwide policy document.
This proposed rule is focused solely on providing implementing
contractual language and a contract clause, as mandated by statute.
Agencies are reminded that they may further supplement the
applicability of these requirements beyond those included in this rule
in accordance with FAR subpart 1.3, Agency Acquisition Regulations.
While section 862 of the 2008 NDAA required standardization of rules
for private security contractors that are performing in designated
areas of combat operations or other significant military operations,
the underlying Governmentwide instruction was the responsibility of the
Secretary of Defense, in coordination with the Secretary of State. The
resultant regulation was published as a final rule at 32 CFR part 159,
entitled ``Private Security Contractors Operating in Contingency
Operations, Combat Operations or Other Significant Military
Operations,'' on August 11, 2011 (see 76 FR 49650) (or, see the
corresponding Department of Defense Instruction (DoDI) 3020.50 at
http://www.dtic.mil/whs/directives/corres/pdf/302050p.pdf).
[[Page 43040]]
The regulations implementing the referenced statutory provisions
for contracts are proposed to be located in FAR subpart 25.3, entitled
``Contracts Performed Outside the United States.'' The coverage
implementing section 862, as amended, is proposed to be located at a
new FAR section 25.302.
32 CFR part 159 provides two broad exemptions from this coverage,
one for contracts entered into by elements of the intelligence
community in support of intelligence activities (the source is
paragraph (h)(1) of section 862, as amended), and a second for
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
(the source is 32 CFR 159.3, section (3) of the definition of ``covered
contract'').
Further, 32 CFR part 159 applies differently to DoD and non-DoD
agencies. It applies to DoD contracts performed in areas of contingency
operations outside the United States. It applies to DoD and non-DoD
contracts performed in areas of combat operations as designated by the
Secretary of Defense. It applies to DoD contracts performed in areas of
other significant military operations as designated by the Secretary of
Defense and to non-DoD contracts performed in areas of other
significant military operations as designated by the Secretary of
Defense and agreed to by the Secretary of State.
FAR 2.101, Definitions, currently provides the definition of
``contingency operation'' from 10 U.S.C. 101(a)(13). Definitions in
this proposed rule include ``private security functions,'' ``other
significant military operations,'' and ``area of combat operations''
from 32 CFR 159.3 and the statute. This coverage would not apply to the
performance of private security functions within the U.S. It would not
apply outside the U.S. in areas that are not (a) combat operations, (b)
contingency operations, or (c) other significant military operations,
as designated by the Secretary of Defense and agreed to by the
Secretary of State. In addition, the proposed FAR coverage would apply
to the performance of private security functions, regardless of whether
the performance of the security functions are the primary function of
the contract or ancillary functions. For example, a contractor
delivering construction materials in an area of contingency operations
might subcontract with a private security contractor to protect its
supplies and employees during delivery. Although the supplier of the
construction materials is not a private security contractor, the
requirements of the clause proposed at FAR 52.225-XX, Contractors
Performing Private Security Functions Outside the United States, are
applicable. As a further example, the same contractor, if delivering
construction materials to a base in Germany would not be governed, at
this time, by the requirements and limitations of FAR 52.225-XX because
Germany is not a designated area. This is further clarified by the
proposed FAR 25.302-4, Policy.
The proposed FAR 25.302-4 subsection would implement the relevant
policy document, 32 CFR part 159, and assign contractor
responsibilities for the selection, accountability, training,
equipping, and conduct of personnel performing private security
functions under contracts in the covered areas. It also would assign
responsibilities and establish procedures for incident reporting, use
of and accountability for equipment, and rules for the use of force.
The law includes specific remedies for violations of the
responsibilities and procedures in the law. These are addressed at FAR
25.302-5, Remedies. Without impinging on the Government's usual
contractual remedies (e.g., termination for default), the proposed rule
would allow the Government, at its discretion, to direct the contractor
to remove or replace any personnel who fail to comply with, or violate,
applicable requirements of the clause at FAR 52.225-XX. Such corrective
actions would be required to be taken at the contractor's own expense
and without prejudice to any other contractual rights. The proposed
rule also includes additional remedies as follows:
1. Contracting officers must include a contractor's failure to
comply in appropriate past-performance databases.
2. If the contract is an award-fee contract, the contracting
officer must include performance failure in the assessment of award
fees for the relevant period (as well as authorizing the treatment of
such failures as a basis for reducing or denying award fees for the
relevant period or recovering all or part of award fees previously paid
for such period).
3. If the contractor's performance failures are severe, prolonged,
or repeated, the statute requires the contracting officer to refer the
matter to the appropriate suspension and debarment official.
The clause prescription, at FAR 25.302-6, proposes to closely
follow the applicability coverage at FAR 25.302-2.
II. 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 E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993. This rule is not a major rule under 5
U.S.C. 804.
III. Regulatory Flexibility Act
The changes may 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. An Initial Regulatory
Flexibility Analysis (IRFA) has been prepared and is summarized as
follows:
DoD, GSA, and NASA are proposing to amend the Federal
Acquisition Regulation (FAR) to implement section 862 of the NDAA
for FY 2008, as amended by section 853 of the NDAA for FY 2009 and
sections 831 and 832 of the NDAA for FY 2011. The statutory
provisions, together with the implementing Governmentwide
regulations required by the statute (32 CFR part 159, published at
76 FR 49650 on August 11, 2011) add requirements and limitations for
contractors performing private security functions in areas of
contingency operations, combat operations, or other military
operations as designated by the Secretary of Defense, upon agreement
of the Secretaries of Defense and State. These requirements are that
contractors performing in areas such as Iraq and Afghanistan ensure
that their personnel performing private security functions comply
with 32 CFR part 159, including (1) accounting for Government-
acquired and contractor-furnished property and (2) reporting
incidents in which a weapon is discharged, personnel are attacked or
killed or property is destroyed, or active, lethal countermeasures
are employed.
At this time, the only statistics available are from DoD. Other
agencies are beginning to award contracts for performance in areas
subject to the statute as U.S. troops are recalled. In FY 2010, DoD
awarded 1,839 contracts for performance in Iraq and Afghanistan. Of
this total, 361, or 20 percent, were awarded to small businesses.
Firms performing under DoD contracts in these areas were already
required to register their private security personnel, weapons, and
certain vehicles under a web-based system (SPOT), and contractors
for the Department of State and the U.S. Agency for International
[[Page 43041]]
Development (AID) have been using SPOT in Iraq and Afghanistan. The
requirement to report the occurrence of certain incidences is on an
as-needed basis and is minimal.
As DoD personnel exit the areas of current contingency
operations, e.g., Iraq and Afghanistan, support requirements are
being transitioned to other Government agencies. The expected total
number of contracts requiring the use of private security
contractors is approximately one half of the DoD level, but the
assumption was made that 20 percent of these contracts would
continue to be awarded to small businesses.
The impact on small business subcontractors will be minor, for
several reasons. Not all subcontracts involve the performance of
private security functions, in which case the clause does not flow
down to the subcontract. Therefore, in these situations, there is no
impact on small business subcontractors. Further, most subcontracts
that require the performance of private security functions in the
areas of Iraq and Afghanistan are being awarded to firms based in
those countries. Such firms are, by definition, not small businesses
because they are not U.S. firms. In the small proportion of
situations where a subcontractor 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. At
this time the clause would only apply to the Department of Defense,
as the Secretary of Defense has made no designations of area (see
FAR 25.302-2(b)).
The publication of 32 CFR part 159 will provide consistency in
reporting requirements and accountability for private security
personnel and their weapons, thus simplifying compliance for small
and large businesses.
While 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, there are, at present, no reporting systems that have been
developed by non-DoD agencies. An information collection request has
been prepared and submitted to the Office of Management and Budget
with this proposed rule.
The proposed rule does not unnecessarily overlap or conflict
with existing coverage at Defense Federal Acquisition Regulation
Supplement (DFARS) 225.370. However, the DFARS coverage will be
amended to delete duplicative text when a final rule is published
for this FAR case. There are no alternatives that would further
decrease the already minimal economic impact of the statute's
implementation.
The Regulatory Secretariat has submitted a copy of the IRFA to the
Chief Counsel for Advocacy of the Small Business Administration. A copy
of the IRFA may be obtained from the Regulatory Secretariat. The
Councils will consider comments from small entities concerning the
affected FAR parts 1, 25, and 52 in accordance with 5 U.S.C. 610.
Comments must be submitted separately and should cite 5 U.S.C 601, et
seq. (FAR case 2011-029), in correspondence.
IV. Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C chapter 35) applies. The
proposed rule contains information collection requirements.
Accordingly, the Regulatory Secretariat submitted a request for
approval of a new information collection requirement for non-DoD
agencies to the Office of Management and Budget (OMB). OMB has assigned
the number 9000-0184, entitled ``Contractors Performing Private
Security Functions Outside the United States,'' for this new
information collection request. DoD's information collection has been
approved previously under OMB Control Number 0704-0460, Synchronized
Predeployment and Operation Tracker (SPOT) System.
A. Public reporting burden for this collection of information is
estimated to average 0.109 hours per response, including the time for
identifying and inputting information.
The annual reporting burden is estimated as follows:
Respondents: 920.
Responses per respondent: 5.
Total annual responses: 4,600.
Preparation hours per response: 0.109 hours.
Total response Burden Hours: 501.
B. Request for Comments Regarding Paperwork Burden.
Submit comments, including suggestions for reducing this burden,
not later than September 21, 2012 to: FAR Desk Officer, OMB, Room
10102, NEOB, Washington, DC 20503, and a copy to the General Services
Administration, Regulatory Secretariat Division (MVCB), ATTN: Hada
Flowers, 1275 First Street NE., 7th Floor, Washington, DC 20417.
Public comments are particularly invited on: whether this
collection of information is necessary for the proper performance of
functions of the FAR, and will have practical utility; whether our
estimate of the public burden of this collection of information is
accurate, and based on valid assumptions and methodology; ways to
enhance the quality, utility, and clarity of the information to be
collected; and ways in which we can minimize the burden of the
collection of information on those who are to respond, through the use
of appropriate technological collection techniques or other forms of
information technology.
Requesters may obtain a copy of the supporting statement from the
General Services Administration, Regulatory Secretariat (MVCB), Attn:
Hada Flowers, 1275 First Street NE., 7th floor, Washington, DC 20417.
Please cite OMB Control Number 9000-0184, Contractors Performing
Private Security Functions Outside the United States, in all
correspondence.
List of Subjects in 48 CFR Parts 1, 25, and 52
Government procurement.
Dated: July 12, 2012.
Laura Auletta,
Director, Office of Governmentwide Acquisition Policy, Office of
Acquisition Policy, Office of Governmentwide Policy.
Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 1, 25,
and 52 as set forth below:
1. The authority citation for 48 CFR parts 1, 25, and 52 is revised
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]
2. Amend section 1.106, in the table following the introductory
text, by adding in numerical sequence, FAR segment ``52.225-XX'' and
its corresponding OMB Control No. ``9000-0184''.
PART 25--FOREIGN ACQUISITION
3. Add subpart 25.302 to read as follows:
Subpart 25.302 Contractors Performing Private Security Functions
Outside the United States
Sec.
25.302-1 Scope.
25.302-2 Applicability.
25.302-3 Definitions.
25.302-4 Policy.
25.302-5 Remedies.
25.302-6 Contract clause.
Subpart 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. 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 Applicability.
(a) DoD: This section applies to acquisitions by Department of
Defense components for supplies and services under a contract that
requires performance--
[[Page 43042]]
(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.
(b) Non-DoD agencies: This section applies to acquisitions by non-
DoD agencies for supplies and services 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 deliverable is other supplies
or services and the provision of private security functions is
ancillary.
(e) The requirements of this section 25.302 shall not apply to
contracts entered into by elements of the intelligence community in
support of intelligence activities, and 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; these temporary arrangements must
still comply with local law.
25.302-3 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 private
security contractors 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 25.302-2(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.
25.302-4 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 (b)(3) of the clause at 52.225-XX, 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 private
security contractors 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 private security contractors and
their personnel consistent with the standards set forth by the
geographic combatant commander. In a designated area of combat
operations, 32 CFR 159.4(c) gives the Chief of Mission the option of
instructing non-DoD private security contractors 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 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
suspension and debarment official.
25.302-6 Contract clause.
(a) Use the clause at 52.225-XX, Contractors Performing Private
Security Functions Outside the United States, in the following
solicitations and contracts:
(1) A DoD contract for performance of services and/or delivery of
supplies 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.
[[Page 43043]]
(2) A contract of a non-DoD agency for performance of services and/
or delivery of supplies in:
(i) An area of combat operations, as designated by the Secretary of
Defense; or
(ii) 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) 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
4. Amend section 52.212-5 by--
a. Revising the date of clause;
b. Redesignating paragraphs (b)(43) through (51) as paragraphs
(b)(44) through (52), respectively;
c. Adding a new paragraph (b)(43);
d. Redesignating paragraphs (e)(1)(xiii) and (xiv) as paragraphs
(e)(1)(xiv) and (xv), respectively; and
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 (DATE)
* * * * *
(b) * * *
(43) 52.225-XX, Contractors Performing Private Security
Functions Outside the United States (DATE) (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-XX, Contractors Performing Private Security
Functions Outside the United States (DATE) (Section 862, as amended,
of the National Defense Authorization Act for Fiscal Year 2008; 10
U.S.C. 2302 Note).
* * * * *
5. Add section 52.225-XX to read as follows:
52.225-XX 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 (DATE)
(a) Definition.
Private security functions means activities engaged in by a
Contractor, as follows:
(i) Guarding of personnel, facilities, designated sites, or
property of a Federal agency, the Contractor or subcontractor, or a
third party; or
(ii) 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) 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 (b)(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.
(c) 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 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 or denying award fees
for such period or for recovering all or part of award fees
previously paid for such period.
(d) 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.
(e) Subcontracts. The Contractor shall include the substance of
this clause, including this paragraph (e), 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; 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.
[[Page 43044]]
(End of clause)
[FR Doc. 2012-17477 Filed 7-20-12; 8:45 am]
BILLING CODE 6820-EP-P