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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. 833. STANDARDS AND CERTIFICATION FOR PRIVATE SECURITY CONTRACTORS.

(a) Review of Third-Party Standards and Certification Processes- Not later than 90 days after the date of the enactment of this Act, the Secretary of Defense shall--

(1) determine whether the private sector has developed--

(A) operational and business practice standards applicable to private security contractors; and

(B) third-party certification processes for determining whether private security contractors adhere to standards described in subparagraph (A); and

(2) review any standards and processes identified pursuant to paragraph (1) to determine whether the application of such standards and processes will make a substantial contribution to the successful performance of private security functions in areas of combat operations or other significant military operations.

(b) Revised Regulations- Not later than 270 days after the date of the enactment of this Act, the Secretary of Defense shall revise the regulations promulgated under section 862 of the National Defense Authorization Act for Fiscal Year 2008 (Public Law 110-181; 10 U.S.C. 2302 note) to ensure that such regulations--

(1) establish criteria for defining standard practices for the performance of private security functions, which shall reflect input from industry representatives as well as the Inspector General of the Department of Defense; and

(2) establish criteria for weapons training programs for contractors performing private security functions, including minimum requirements for weapons training programs of instruction and minimum qualifications for instructors for such programs.

(c) Inclusion of Third-Party Standards and Certifications in Revised Regulations-

(1) STANDARDS- If the Secretary determines that the application of operational and business practice standards identified pursuant to subsection (a)(1)(A) will make a substantial contribution to the successful performance of private security functions in areas of combat operations or other significant military operations, the revised regulations promulgated pursuant to subsection (b) shall incorporate a requirement to comply with such standards, subject to such exceptions as the Secretary may determine to be necessary.

(2) CERTIFICATIONS- If the Secretary determines that the application of a third-party certification process identified pursuant to subsection (a)(1)(B) will make a substantial contribution to the successful performance of private security functions in areas of combat operations or other significant military operations, the revised regulations promulgated pursuant to subsection (b) may provide for the consideration of such certifications as a factor in the evaluation of proposals for award of a covered contract for the provision of private security functions, subject to such exceptions as the Secretary may determine to be necessary.

(d) Definitions- In this section:

(1) COVERED CONTRACT- The term `covered contract' means--

(A) a contract of the Department of Defense for the performance of services;

(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.

(2) CONTRACTOR- The term `contractor' means, with respect to a covered contract, the contractor or subcontractor carrying out the covered contract.

(3) PRIVATE SECURITY FUNCTIONS- The term `private security functions' means activities engaged in by a contractor under a covered contract as follows:

(A) Guarding of personnel, facilities, or property of a Federal agency, the contractor or subcontractor, or a third party.

(B) Any other activity for which personnel are required to carry weapons in the performance of their duties.

(e) Exception- The requirements of this section shall not apply to contracts entered into by elements of the intelligence community in support of intelligence activities.

From H.R. 5136:  National Defense Authorization Act for Fiscal Year 2011

SEC. 324. STANDARDS AND CERTIFICATION FOR PRIVATE SECURITY CONTRACTORS.

(a) Third-party Certification Policy Guidance- Not later than 270 days after the date of the enactment of this Act, the Secretary of Defense shall issue policy guidance requiring, as a condition for award of a covered contract for the provision of private security functions, that each contractor receive certification from a third party that the contractor adheres to specified operational and business practice standards. The guidance shall--

(1) establish criteria for defining standard practices for the performance of private security functions, which shall reflect input from industry representatives as well as the Inspector General of the Department of Defense;

(2) establish criteria for weapons training programs for contractors performing private security functions, including minimum requirements for weapons training programs of instruction and minimum qualifications for instructors for such programs; and

(3) identify organizations that can carry out the certifications.

(b) Regulations Required- Not later than 270 days after the date of the enactment of this Act, the Secretary of Defense shall revise the Department of Defense supplement to the Federal Acquisition Regulation to carry out the requirements of this section and the guidance issued under this section.

(c) Definitions- In this section:

(1) The term `covered contract' means--

(A) a contract of the Department of Defense for the performance of services;

(B) a subcontract at any tier under such contract;

(C) a task order or delivery order issued under such a contract or subcontract.

(2) The term `contractor' means, with respect to a covered contract, the contractor or subcontractor carrying out the covered contract.

(3) The term `private security functions' means activities engaged in by a contractor under a covered contract as follows:

(A) Guarding of personnel, facilities, or property of a Federal agency, the contractor or subcontractor, or a third party.

(B) Any other activity for which personnel are required to carry weapons in the performance of their duties.

(d) Exception- The requirements of this section shall not apply to contracts entered into by elements of the intelligence community in support of intelligence activities.

The House bill contained a provision (sec. 324) that would require the Secretary of Defense to establish third-party certification of adherence to specified operational and business practice standards as a condition for award of certain contracts for private security functions.

The Senate committee-reported bill contained no similar provision.

The agreement includes the House provision with an amendment giving the Secretary flexibility to review proposed standards and certification processes and act in the best interests of the Department of Defense. Regardless of the outcome of this review, we expect the Department to develop and implement operational and business practice standards for private security contractors in full compliance with the requirements of section 862 of the National Defense Authorization Act for Fiscal Year 2008 (Public Law 110-181).

From H. Rpt. 111-491, accompanying H. R. 5136, the NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2011

SECTION 324--STANDARDS AND CERTIFICATION FOR PRIVATE SECURITY CONTRACTORS

This section would require the Secretary of Defense to issue policy guidance requiring the establishment of a third-party certification process for specified operational and business practice standards to which private security contractors must adhere as a condition for selection for defense contracts for the performance of private security functions. In addition, all private security contractor employees who are required to carry weapons in the performance of their duties under a defense contract would be required to obtain basic weapons training certification from a reputable certifying body as a requirement of that contract. This section would not apply to intelligence activities.