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Title XII — MATTERS RELATING TO OTHER NATIONS

P. L. 108-375

House Conference Report 108-767

(a) GUIDANCE. — Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall issue guidance on how the Department of Defense shall manage contractor personnel who support deployed forces and shall direct the Secretaries of the military departments to develop procedures to ensure implementation of that guidance. The guidance shall —

(1) establish policies for the use of contractors to support deployed forces;

(2) delineate the roles and responsibilities of commanders regarding the management and oversight of contractor personnel who support deployed forces; and

(3) integrate into a single document other guidance and doctrine that may affect Department of Defense responsibilities to contractors in locations where members of the Armed Forces are deployed.

(b) ISSUES TO BE ADDRESSED. — The guidance issued under subsection (a) shall address at least the following matters:

(1) Warning contractor security personnel of potentially hazardous situations.

(2) Coordinating the movement of contractor security personnel, especially through areas of increased risk or planned or ongoing military operations.

(3) Rapidly identifying contractor security personnel by members of the Armed Forces.

(4) Sharing relevant threat information with contractor security personnel and receiving information gathered by contractor security personnel for use by United States and coalition forces.

(5) Providing appropriate assistance to contractor personnel who become engaged in hostile situations.

(6) Providing medical assistance for, and evacuation of, contractor personnel who become casualties as a result of enemy actions.

(7) Investigating background and qualifications of contractor security personnel and organizations.

(8) Establishing rules of engagement for armed contractor security personnel, and ensuring proper training and compliance with the rules of engagement.

(9) Establishing categories of security, intelligence, law enforcement, and criminal justice functions that are —

(A) inherently governmental functions under Subpart 7.5 of the Federal Acquisition Regulation; or

(B) although not inherently governmental functions, should not ordinarily be performed by contractors in areas of operations.

(10) Establishing procedures for making and documenting determinations about which security, intelligence, law enforcement, and criminal justice functions will be performed by military personnel and which will be performed by private companies.

(c) REPORT. — Not later than 30 days after issuing the guidance required under subsection (a), the Secretary of Defense shall submit to the Committees on Armed Services of the Senate and House of Representatives a report on the guidance issued under subsection (a).

The House bill contained a provision (sec. 1205) that would require the Secretary of Defense to issue guidance and a report on contractors supporting deployed forces in Iraq.

The Senate amendment contained a similar provision (sec. 863).  In addition, the Senate amendment contained a provision (sec. 865) that would require a report on contractor performance of security, intelligence, law enforcement, and criminal justice functions in Iraq.

The Senate recedes with an amendment that would provide additional detail on the guidance to be issued.  The amendment would require that the Secretary's guidance address the issue of contractor performance of security, intelligence, law enforcement, and criminal justice functions.  The conferees expect the guidance to address the full range of security, intelligence, law enforcement, and criminal justice functions that are being performed by contractors in support of current military operations or are anticipated to be performed by contractors in support of future military operations.

The amendment would also require that the guidance address:  (1) investigating background and qualifications of contractor security personnel and organizations; and (2) ensuring proper training and compliance with rules of engagement by armed contractor security personnel.  The conferees take no position as to whether such investigations and training should be conducted by Department of Defense personnel or by contractor personnel subject to Department oversight.

The conferees expect the Secretary to coordinate, as appropriate, with the heads of other departments and agencies of the Federal Government that would be affected by the implementation of the guidance.

In addition, the conferees expect the Secretary, in preparing the guidance required by this section, to address options for enhancing contractor security and reducing contractor security costs in current and future armed conflicts.  The options considered should include:  (1) temporary commissioning of contractor security personnel as Reserve component officers in order to subject such personnel to the military chain of command; (2) requiring  contractor security personnel to obtain security clearances to facilitate the communication of critical threat information; (3) establishing a contract schedule for companies furnishing contractor security personnel to provide a more orderly process for the selection, training, and compensation of such personnel; (4) establishing a contract schedule for companies to provide more cost-effective insurance for contractor security personnel; and (5) providing for U. S. indemnification of contractors to reduce the costs of insuring contractor security personnel.  The report required by subsection (c) should explain the rationale for the Secretary's decision to implement or not to implement these options.

House Report 108-491

Senate Report 108-260