80 FR 30202 - Federal Acquisition Regulation: Contractors Performing Private Security Functions

DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

Federal Register Volume 80, Issue 101 (May 27, 2015)

DoD, GSA, and NASA are proposing to amend the Federal Acquisition Regulation (FAR) to remove the distinction between DoD and non-DoD agency areas of operation applicable for the use of FAR clause ``Contractors Performing Private Security Functions Outside the United States'' and provide a definition of ``full cooperation'' within the clause.

[Federal Register Volume 80, Number 101 (Wednesday, May 27, 2015)]
[Proposed Rules]
[Pages 30202-30204]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-12623]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 25 and 52

[FAR Case 2014-018; Docket No. 2014-0018; Sequence No. 1]
RIN 9000-AN07


Federal Acquisition Regulation: Contractors Performing Private 
Security Functions

AGENCY: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Proposed rule.

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SUMMARY: DoD, GSA, and NASA are proposing to amend the Federal 
Acquisition Regulation (FAR) to remove the distinction between DoD and 
non-DoD agency areas of operation applicable for the use of FAR clause 
``Contractors Performing Private Security Functions Outside the United 
States'' and provide a definition of ``full cooperation'' within the 
clause.

DATES: Interested parties should submit written comments to the 
Regulatory Secretariat Division at one of the addresses shown below on 
or before July 27, 2015 to be considered in the formation of the final 
rule.

ADDRESSES: Submit comments in response to FAR Case 2014-018 by any of 
the following methods:
     Regulations.gov: http://www.regulations.gov. Submit 
comments via the Federal eRulemaking portal by searching for ``FAR Case 
2014-018''. Select the link ``Comment Now'' that corresponds with ``FAR 
Case 2014-018''. Follow the instructions on the screen. Please include 
your name, company name (if any), and ``FAR Case 2014-018'' on your 
attached document.
     Mail: General Services Administration, Regulatory 
Secretariat Division (MVCB), ATTN: Ms. Flowers, 1800 F Street NW., 2nd 
Floor, Washington, DC 20405-0001.
    Instructions: Please submit comments only and cite ``FAR Case 2014-
018'' 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 2014-018.

SUPPLEMENTARY INFORMATION:

I. Background

    Section 862 of the National Defense Authorization Act (NDAA) for 
Fiscal Year (FY) 2008 (Pub. L. 110-181) (as amended by other NDAAs, see 
10 U.S.C. 2302 Note), is implemented at FAR section 25.302 and the 
clause at 52.225-26, both entitled ``Contractors Performing Private 
Security Functions Outside the United States,'' in FAC 2005-67, issued 
June 21, 2013. These FAR changes regarding private security contractors 
were effective on July 22, 2013 (see 78 FR 37670) and are applicable to 
distinct operational areas for DoD contracts versus non-DoD contracts.
    Pursuant to section 862, DoD issued DoD Instruction (DoDI) 3020.50, 
``Private Security Contractors (PSCs) Operating in Contingency 
Operations, Humanitarian or Peace Operations, or Other Military 
Operations or Exercises,'' which establishes policy, assigns 
responsibilities, and provides procedures for the regulation of the 
selection, accountability, and conduct of personnel performing private 
security functions under a covered DoD contract. This DoDI was amended 
on August 1, 2011 to expand applicability of DoD's policies regarding 
private security contracts to peace operations or other military 
operations or exercises, when designated by the Combatant Commander.
    Instead of amending FAR 25.302 and 52.225-6 to expand the 
applicability for DoD contracts, this rule proposes to remove the 
distinction between DoD and non-DoD applicable areas of

[[Page 30203]]

operation in the FAR, while DoD moves all DoD policy regarding Defense 
contractors performing private security functions to the Defense 
Federal Acquisition Regulation Supplement (DFARS) at 225.302 and clause 
252.225-7039, both entitled ``Contractors Performing Private Security 
Functions Outside the United States.'' As a result of this effort 
(being accomplished simultaneously by DoD under DFARS case number 2015-
D021), all policies regarding Defense contractors performing private 
security functions would be contained in the DFARS.
    This rule also proposes to add a definition of ``full cooperation'' 
to FAR clause 52.225-26 in order to affirm that the contract clause 
does not foreclose any contractor rights arising in law, the FAR, or 
the terms of the contract when cooperating with any Government-
authorized investigation into incidents reported pursuant to the 
clause. This definition is applicable to both DoD and non-DoD contracts 
for private security functions to be performed outside the United 
States.

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 not a significant regulatory action and, therefore, was not 
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

    DoD, GSA and NASA do not expect this proposed rule to 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. However, an initial regulatory flexibility analysis (IRFA) has 
been prepared consistent with 5 U.S.C. 603, and is summarized as 
follows:

    The objective of this rule is to make the FAR coverage at FAR 
section 25.302 and 52.225-26 for contractors performing private 
security functions generic by removing the areas of operation 
applicable to DoD, as well as the distinction between DoD versus 
non-DoD agency contracts, while DoD moves all DoD requirements for 
defense contractors performing these functions to the DFARS at 
225.302 and 252.225-7039. The rule also proposes to add definition 
of ``full cooperation'' to FAR clause 52.225-26 in order to affirm 
that the contract clause does not foreclose any contractor rights 
arising in law, the FAR, or the terms of the contract when 
cooperating with any Government-authorized investigation into 
incidents reported pursuant to the clause.
    Based on data available in the Federal Procurement Data System 
(FPDS), DoD awarded 103 contracts in Fiscal Year (FY) 2013 that 
required performance outside of the United States in support of a 
humanitarian or peacekeeping operation, of which only 13 contracts 
(12.6 percent) were awarded to small businesses. DoD awarded 403 
contracts in FY 2013 in support of contingency operations outside of 
the United States, of which 63 contracts (15.6 percent) were awarded 
to small businesses. Therefore, it is estimated that this rule will 
apply to approximately 76 small businesses.
    This rule does not create any new reporting, recordkeeping, or 
other compliance requirements. The rule does not duplicate, overlap, 
or conflict with any other Federal rules. There are no known 
significant alternatives to the rule. The impact of this rule on 
small business is not expected to be significant.

    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 Division. 
DoD, GSA and NASA invite comments from small business concerns and 
other interested parties on the expected impact of this rule on small 
entities.
    DoD, GSA, and NASA will also consider comments from small entities 
concerning the existing regulations in subparts affected by the rule in 
accordance with 5 U.S.C. 610. Interested parties must submit such 
comments separately and should cite 5 U.S.C. 610 (FAR Case 2014-018), 
in correspondence.

IV. Paperwork Reduction Act

    This rule affects the certification and information collection 
requirements in FAR clause 52.225-26, currently approved under OMB 
Control Number 9000-0184, titled ``Contractors Performing Private 
Security Functions Outside the United States,'' in accordance with the 
Paperwork Reduction Act (44 U.S.C. chapter 35). The impact, however, is 
negligible because the proposed rule merely removes the distinction 
between DoD and non-DoD contract areas of applicability for use of FAR 
clause 52.225-26 for contracts requiring performance of private 
security functions outside the United States.

List of Subjects in 48 CFR Parts 25 and 52

    Government procurement.

    Dated: May 19, 2015.
William Clark,
Director, Office of Government-wide Acquisition Policy, Office of 
Acquisition Policy, Office of Government-wide Policy.

    Therefore, DoD, GSA, and NASA are proposing to amend 48 CFR parts 
25 and 52, as set forth below:

0
1. The authority citation for 48 CFR parts 25 and 52 continues to read 
as follows:

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 
U.S.C. 20113.

PART 25--FOREIGN ACQUISITION

0
2. Amend section 25.302-3 by--
0
a. Removing paragraph (a);
0
b. Redesignating paragraphs (b) through (e) as paragraphs (a) through 
(d), respectively; and
0
c. Revising newly designated paragraph (a).
    The revision reads as follows:


25.302-3  Applicability.

    (a) This section applies to contracts that require performance 
outside the United States--
    (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.
* * * * *
0
3. Amend section 25.302-4 by--
0
a. Revising the first sentence of paragraph (a)(1); and
0
b. Removing from paragraph (a)(2) ``required to cooperate'' and adding 
``required to fully cooperate'' in its place.
    The revision reads as follows:


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 Operating 
in Contingency Operations''. * * *
* * * * *
0
4. Amend section 25.302-6 by revising paragraph (a) to read as follows:


25.302-6  Contract clause.

    (a) Use the clause at 52.225-26, Contractors Performing Private 
Security Functions Outside the United States, in

[[Page 30204]]

solicitations and contracts for performance outside the United States 
in an area of--
    (1) Combat operations, as designated by the Secretary of Defense; 
or
    (2) 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.
* * * * *

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
5. Amend section 52.212-5 by--
0
a. Revising the date of the clause;
0
b. Revising paragraph (b)(45);
0
c. Revising paragraph (e)(1)(xvi);
0
d. In Alternate II:
0
i. Revising the Alternate date;
0
ii. Redesignating paragraphs (e)(1)(ii)(O) and (P) as paragraphs 
(e)(1)(ii)(P) and (Q), respectively; and
0
iii. Adding a new paragraph (e)(1)(ii)(O).
    The revisions and addition read 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) * * *
    _(45) 52.225-26, 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) * * *
    (xvi) 52.225-26, 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).
* * * * *
    Alternate II (DATE). * * *
* * * * *
    (e)(1) * * *
    (ii) * * *
    (O) 52.225-26, 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).
* * * * *
0
6. Amend section 52.213-4 by revising the date of the clause and 
paragraph (a)(2)(viii) to read as follows:


52.213-4  Terms and Conditions--Simplified Acquisitions (Other Than 
Commercial Items)

* * * * *

Terms and Conditions--Simplified Acquisitions (Other Than Commercial 
Items) (DATE)

    (a) * * *
    (2) * * *
    (viii) 52.244-6, Subcontracts for Commercial Items (DATE).
* * * * *
0
7. Amend section 52.225-26 by--
0
a. Removing from the introductory text ``25.302-6'' and adding 
``25.302-6,'' in its place.
0
b. Revising the date of the clause;
0
c. Revising the introductory text of paragraph (a);
0
d. Adding to paragraph (a), in alphabetical order, the definitions for 
``Area of Combat operations'', ``Full Cooperation'', and ``Other 
significant military operations'';
0
e. Revising paragraph (b);
0
f. Revising paragraph (c)(2)(i);
0
g. Removing from the introductory text of paragraph (c)(3) 
''Cooperate'' and adding ``Provide full cooperation'' in its place; and
0
h. Revising paragraph (f).
    The revisions and additions read as follows:


52.225-26  Contractors Performing Private Security Functions Outside 
the United States.

* * * * *

Contractors Performing Private Security Functions Outside the United 
States (date)

    (a) Definitions. As used in this clause--
    Area of combat operations means an area of operations designated 
as such by the Secretary of Defense when enhanced coordination of 
contractors performing private security functions working for 
Government agencies is required.
    Full Cooperation. (1) Means disclosure to the Government of the 
information sufficient to identify the nature and extent of the 
incident and the individuals responsible for the conduct. It 
includes providing timely and complete responses to Government 
auditors' and investigators' requests for documents and access to 
employees with information;
    (2) Does not foreclose any Contractor rights arising in law, the 
FAR, or the terms of the contract. It does not require--
    (i) The Contractor to waive its attorney-client privilege or the 
protections afforded by the attorney work product doctrine; or
    (ii) Any officer, director, owner, or employee of the 
Contractor, including a sole proprietor, to waive his or her 
attorney-client privilege or Fifth Amendment rights; and
    (3) Does not restrict the Contractor from--
    (i) Conducting an internal investigation; or
    (ii) Defending a proceeding or dispute arising under the 
contract or related to a potential or disclosed violation.
    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.
* * * * *
    (b) Applicability. If this contract is performed both in a 
designated area and in an area that is not designated, the clause 
only applies to performance in the following designated areas:
    (1) Combat operations, as designated by the Secretary of 
Defense; or
    (2) 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) * * *
    (2) * * *
    (i) Qualification, training, screening (including, if 
applicable, thorough background checks), and security requirements 
established by 32 CFR part 159, Private Security Contractors 
Operating in Contingency Operations;
* * * * *
    (f) Subcontracts. The Contractor shall include the substance of 
this clause, including this paragraph (f), in all subcontracts that 
will be performed outside the United States in areas of--
    (1) Combat operations, as designated by the Secretary of 
Defense; or
    (2) Other significant military operations, upon agreement of the 
Secretaries of Defense and State that the clause applies in that 
area.
* * * * *
0
8. Amend section 52.244-6 by revising the date of the clause and 
paragraph (c)(1)(xii) to read as follows:


52.244-6  Subcontracts for Commercial Items.

* * * * *

Subcontracts for Commercial Items (DATE)

* * * * *
    (c)(1) * * *
* * * * *
    (xii) 52.225-26, 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).
* * * * *
[FR Doc. 2015-12623 Filed 5-26-15; 8:45 am]
 BILLING CODE 6820-EP-P