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

Subtitle F — Contracts in Iraq and Afghanistan

NDAA Section

House Conference Report 110-477

SEC. 862. CONTRACTORS PERFORMING PRIVATE SECURITY FUNCTIONS IN AREAS OF COMBAT OPERATIONS.

(a) Regulations on Contractors Performing Private Security Functions-

(1) IN GENERAL- Not later than 120 days after the date of the enactment of this Act, the Secretary of Defense, in coordination with the Secretary of State, shall prescribe regulations on the selection, training, equipping, and conduct of personnel performing private security functions under a covered contract in an area of combat operations.

(2) ELEMENTS- The regulations prescribed under subsection (a) shall, at a minimum, establish--

(A) a process for registering, processing, accounting for, and keeping appropriate records of personnel performing private security functions in an area of combat operations;

(B) a process for authorizing and accounting for weapons to be carried by, or available to be used by, personnel performing private security functions in an area of combat operations;

(C) a process for the registration and identification of armored vehicles, helicopters, and other military vehicles operated by contractors performing private security functions in an area of combat operations;

(D) a process under which contractors are required to report all incidents, and persons other than contractors are permitted to report incidents, in which--

(i) a weapon is discharged by personnel performing private security functions in an area of combat operations;

(ii) personnel performing private security functions in an area of combat operations are killed or injured; or

(iii) persons are killed or injured, or property is destroyed, as a result of conduct by contractor personnel;

(E) a process for the independent review and, if practicable, investigation of--

(i) incidents reported pursuant to subparagraph (D); and

(ii) incidents of alleged misconduct by personnel performing private security functions in an area of combat operations;

(F) requirements for qualification, training, screening (including, if practicable, through background checks), and security for personnel performing private security functions in an area of combat operations;

(G) guidance to the commanders of the combatant commands on the issuance of--

(i) orders, directives, and instructions to contractors performing private security functions relating to equipment, force protection, security, health, safety, or relations and interaction with locals;

(ii) predeployment training requirements for personnel performing private security functions in an area of combat operations, addressing the requirements of this section, resources and assistance available to contractor personnel, country information and cultural training, and guidance on working with host country nationals and military; and

(iii) rules on the use of force for personnel performing private security functions in an area of combat operations;

(H) a process by which a commander of a combatant command may request an action described in subsection (b)(3); and

(I) a process by which the training requirements referred to in subparagraph (G)(ii) shall be implemented.

(3) AVAILABILITY OF ORDERS, DIRECTIVES, AND INSTRUCTIONS- The regulations prescribed under subsection (a) shall include mechanisms to ensure the provision and availability of the orders, directives, and instructions referred to in paragraph (2)(G)(i) to contractors referred to in that paragraph, including through the maintenance of a single location (including an Internet website, to the extent consistent with security considerations) at or through which such contractors may access such orders, directives, and instructions.

(b) Contract Clause on Contractors Performing Private Security Functions-

(1) REQUIREMENT UNDER FAR- Not later than 180 days after the date of the enactment of this Act, the Federal Acquisition Regulation issued in accordance with section 25 of the Office of Federal Procurement Policy Act (41 U.S.C. 421) shall be revised to require the insertion into each covered contract (or, in the case of a task order, the contract under which the task order is issued) of a contract clause addressing the selection, training, equipping, and conduct of personnel performing private security functions under such contract.

(2) CLAUSE REQUIREMENT- The contract clause required by paragraph (1) shall require, at a minimum, that the contractor concerned shall--

(A) comply with regulations prescribed under subsection (a), including any revisions or updates to such regulations, and follow the procedures established in such regulations for--

(i) registering, processing, accounting for, and keeping appropriate records of personnel performing private security functions in an area of combat operations;

(ii) authorizing and accounting of weapons to be carried by, or available to be used by, personnel performing private security functions in an area of combat operations;

(iii) registration and identification of armored vehicles, helicopters, and other military vehicles operated by contractors and subcontractors performing private security functions in an area of combat operations; and

(iv) the reporting of incidents in which--

(I) a weapon is discharged by personnel performing private security functions in an area of combat operations;

(II) personnel performing private security functions in an area of combat operations are killed or injured; or

(III) persons are killed or injured, or property is destroyed, as a result of conduct by contractor personnel;

(B) ensure that all personnel performing private security functions under such contract are briefed on and understand their obligation to comply with--

(i) qualification, training, screening (including, if practicable, through background checks), and security requirements established by the Secretary of Defense for personnel performing private security functions in an area of combat operations;

(ii) applicable laws and regulations of the United States and the host country, and applicable treaties and international agreements, regarding the performance of the functions of the contractor;

(iii) orders, directives, and instructions issued by the applicable commander of a combatant command relating to 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 for personnel performing private security functions in an area of combat operations; and

(C) cooperate with any investigation conducted by the Department of Defense pursuant to subsection (a)(2)(E) by providing access to employees of the contractor and relevant information in the possession of the contractor regarding the incident concerned.

(3) NONCOMPLIANCE OF PERSONNEL WITH CLAUSE- The contracting officer for a covered contract may direct the contractor, at its own expense, to remove or replace any personnel performing private security functions in an area of combat operations who violate or fail to comply with applicable requirements of the clause required by this subsection. If the violation or failure to comply is a gross violation or failure or is repeated, the contract may be terminated for default.

(4) APPLICABILITY- The contract clause required by this subsection shall be included in all covered contracts awarded on or after the date that is 180 days after the date of the enactment of this Act. Federal agencies shall make best efforts to provide for the inclusion of the contract clause required by this subsection in covered contracts awarded before such date.

(5) INSPECTOR GENERAL REPORT ON PILOT PROGRAM ON IMPOSITION OF FINES FOR NONCOMPLIANCE OF PERSONNEL WITH CLAUSE- Not later than March 30, 2008, the Inspector General of the Department of Defense shall submit to Congress a report assessing the feasibility and advisability of carrying out a pilot program for the imposition of fines on contractors for personnel who violate or fail to comply with applicable requirements of the clause required by this section as a mechanism for enhancing the compliance of such personnel with the clause. The report shall include--

(A) an assessment of the feasibility and advisability of carrying out the pilot program; and

(B) if the Inspector General determines that carrying out the pilot program is feasible and advisable--

(i) recommendations on the range of contracts and subcontracts to which the pilot program should apply; and

(ii) a schedule of fines to be imposed under the pilot program for various types of personnel actions or failures.

(c) Areas of Combat Operations-

(1) DESIGNATION- The Secretary of Defense shall designate the areas constituting an area of combat operations for purposes of this section by not later than 120 days after the date of the enactment of this Act.

(2) PARTICULAR AREAS- Iraq and Afghanistan shall be included in the areas designated as an area of combat operations under paragraph (1).

(3) ADDITIONAL AREAS- The Secretary may designate any additional area as an area constituting an area of combat operations for purposes of this section if the Secretary determines that the presence or potential of combat operations in such area warrants designation of such area as an area of combat operations for purposes of this section.

(4) MODIFICATION OR ELIMINATION OF DESIGNATION- The Secretary may modify or cease the designation of an area under this subsection as an area of combat operations if the Secretary determines that combat operations are no longer ongoing in such area.

(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 Senate amendment contained a provision (sec. 871) that would: (1) require the Secretary of Defense to prescribe regulations on the selection, training, equipment, and conduct of personnel performing private security functions in an area of combat operations; and (2) ensure that contractors and subcontractors of all federal agencies are subject to such regulations and to directives issued by combatant commanders in accordance with such regulations.

The House bill contained no similar provision.

The House recedes with an amendment clarifying that the requirements of this provision do not apply to contracts entered into by the intelligence community in support of intelligence activities.

The conferees have agreed to provide the Secretary of Defense the authority to require contractors to comply with the regulations issued under this section in areas where there is the potential for combat operations. The conferees intend that the Secretary use this authority with discretion to designate areas with a high potential for combat operations with a commensurate likelihood that private security contractors in such areas would come into regular contact with members of the armed forces.

Senate Armed Services Committee Report 110-77

The committee recommends a provision that would require the Secretary of Defense to prescribe regulations on the selection, training, equipment, and conduct of personnel performing private security functions in an area of combat operations. The provision would also require that the Federal Acquisition Regulation be revised to ensure that all contractors and subcontractors in a combat area are subject to such regulations.

Section 1205 of the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005 (Public Law 108-375) required the Secretary of Defense to issue guidance for contractor personnel who support deployed forces. This requirement was implemented through Department of Defense Instruction 3020.41, `Contractor Personnel Authorized to Accompany the U.S. Armed Forces,' dated October 3, 2005. However, section 1205 and DOD Instruction 3020.41 apply only to Department of Defense contractors.

Many contractors perform private security functions in Iraq and elsewhere under contracts or subcontracts with the Department of State, the U.S. Agency for International Development, and other federal agencies. The presence of armed contractor employees on the battlefield can have a direct impact on military operations, regardless of the agency that employs them. Since the beginning of the Iraq war, there have been several reported incidents in which contractor employees have exchanged fire, or threatened to exchange fire, with U.S. forces. Moreover, misconduct by even a few armed contractor employees may reflect badly on the United States and could undermine the chances of success for military missions.

The provision recommended by the committee would address this problem by ensuring that the Department of Defense and its combatant commanders are in a position to regulate the conduct of all armed contractors in the battlespace, regardless whether they are employed under contracts of the Department of Defense or other federal agencies.