80 FR 81496 - Defense Federal Acquisition Regulation Supplement: Defense Contractors Performing Private Security Functions (DFARS Case 2015-D021)

DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System

Federal Register Volume 80, Issue 250 (December 30, 2015)

DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to consolidate requirements that are applicable to DoD contracts for private security functions performed in designated areas outside the United States, make changes regarding applicability, and revise applicable quality assurance standards.

[Federal Register Volume 80, Number 250 (Wednesday, December 30, 2015)]
[Proposed Rules]
[Pages 81496-81499]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-32874]



[[Page 81496]]

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 216, 225, and 252

[Docket DARS-2015-0045]
RIN 0750-AI69


Defense Federal Acquisition Regulation Supplement: Defense 
Contractors Performing Private Security Functions (DFARS Case 2015-
D021)

AGENCY: Defense Acquisition Regulations System, Department of Defense 
(DoD).

ACTION: Proposed rule.

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SUMMARY: DoD is proposing to amend the Defense Federal Acquisition 
Regulation Supplement (DFARS) to consolidate requirements that are 
applicable to DoD contracts for private security functions performed in 
designated areas outside the United States, make changes regarding 
applicability, and revise applicable quality assurance standards.

DATES: Comments on the proposed rule should be submitted in writing to 
the address shown below on or before January 29, 2016 to be considered 
in the formation of a final rule.

ADDRESSES: Submit comments identified by DFARS Case 2015-D021, using 
any of the following methods:
    [cir] Regulations.gov: http://www.regulations.gov. Submit comments 
via the Federal eRulemaking portal by entering ``DFARS Case 2015-D021'' 
under the heading ``Enter keyword or ID'' and selecting ``Search.'' 
Select the link ``Submit a Comment'' that corresponds with ``DFARS Case 
2015-D021.'' Follow the instructions provided at the ``Submit a 
Comment'' screen. Please include your name, company name (if any), and 
``DFARS Case 2015-D021'' on your attached document.
    [cir] Email: [email protected]. Include DFARS Case 2015-D021 in 
the subject line of the message.
    [cir] Fax: 571-372-6094.
    [cir] Mail: Defense Acquisition Regulations System, Attn: Ms. Julie 
Hammond, OUSD (AT&L) DPAP/DARS, Room 3B941, 3060 Defense Pentagon, 
Washington, DC 20301-3060.
    Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided. To 
confirm receipt of your comment(s), please check www.regulations.gov, 
approximately two to three days after submission to verify posting 
(except allow 30 days for posting of comments submitted by mail).

FOR FURTHER INFORMATION CONTACT: Ms. Julie Hammond, telephone 571-372-
6174.

SUPPLEMENTARY INFORMATION:

I. Background

    Requirements for Defense contractors performing private security 
functions outside of the United States are covered in the Federal 
Acquisition Regulation (FAR) at 25.302 and the clause at FAR 52.225-26, 
Contractors Performing Private Security Functions Outside the United 
States, and supplemented at DFARS 225.302 and the clause at DFARS 
252.225-7039, Defense Contractors Performing Private Security Functions 
Outside the United States. DoD is proposing to consolidate all 
requirements for Defense contractors performing private security 
functions in certain designated operational areas in the DFARS at 
225.302 and the clause 252.225-7039.

II. Discussion and Analysis

    A proposed FAR rule, Contractors Performing Private Security 
Functions (FAR case 2014-018), was published in the Federal Register at 
80 FR 30202 on May 27, 2015, to make conforming changes to the FAR by 
removing the requirements specific to DoD contracts for private 
security functions. Under this proposed rule (DFARS case 2015-D021), 
DoD is proposing the following changes: (1) Amend DFARS 225.302 to 
require contracting officers to use the DFARS clause 252.225-7039 in 
lieu of the FAR clause 52.225-26, and (2) amend DFARS clause 252.225-
7039 to include all of the requirements for DoD contractors performing 
private security functions outside the United States from FAR clause 
52.225-26.
    The rule also proposes to amend DFARS clause 252.225-7039 to add 
``International Standard ISO 18788, Management System for Private 
Security Operations-Requirements with Guidance'' as an approved 
alternative to the ANSI/ASIS PSC.1-2012, American National Standard, 
Management System for Quality of Private Security Company Operations--
Requirements with Guidance. Many foreign countries do not accept use of 
foreign national standards. As such, restricting compliance to the 
American National Standard may deter private security contractors from 
other countries from competing on DoD contracts overseas, thus 
restricting our ability to access security services from host countries 
or coalition partner states. This is contrary to the DoD policy of 
promoting effective competition through outreach in global markets (see 
Better Buying Power 3.0, September 19, 2014). In order to expand the 
contractor base and promote competition, this rule proposes to allow 
Defense contractors performing private security functions outside the 
United States to comply with either the American National Standard, 
ANSI/ASIS PSC.1-2012, or the International Standard, ISO 18788.

III. 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.

IV. Regulatory Flexibility Act

    DoD does not expect that this proposed rule will 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. 
Nevertheless, an initial regulatory flexibility analysis has been 
prepared and is summarized as follows:
    This rule proposes to amend the DFARS to consolidate all 
requirements for DoD contractors performing private security functions 
outside the U.S. from the FAR 25.302 and the clause at FAR 52.225-26, 
Contractors Performing Private Security Functions Outside the Unites 
States, in DFARS 225.302 and the clause at DFARS 252.225-7039, Defense 
Contractors Performing Private Security Functions Outside the United 
States.
    The objectives of this rule are as follows:
     Provide DoD contracting officers and contractors a single 
clause covering all requirements related to the performance of private 
security functions outside the United States that may be updated by DoD 
as policies are issued that affect only defense contractors.
     Identify the international high-quality assurance standard 
``ISO 18788: Management System for Private Security

[[Page 81497]]

Operations'' as an approved alternative to the American standard 
``ANSI/ASIS PSC.1-2012'' currently required by DFARS clause 252.225-
7039.
    This proposed rule will apply to defense contractors performing 
private security functions outside of the United States in designated 
operational areas under DoD contracts. According to data available in 
the Federal Procurement Data System for fiscal year (FY) 2013, DoD 
awarded 159 contracts that required performance outside the United 
States, although not necessarily in a designated operation area, and 
cited the National American Industry Classification System code 561612, 
Security Guards and Patrol Services, of which 33 contracts (21%) were 
awarded to small businesses. In FY 2014, DoD awarded 123 such 
contracts, of which 31 contracts (25%) were to small businesses.
    The private security contractors are required to report incidents 
when: (1) A weapon is discharged by personnel performing private 
security functions; (2) personnel performing private security functions 
are attacked, killed, or injured; (3) persons are killed or injured or 
property is destroyed as a result of conduct by Contractor personnel; 
(4) a weapon is discharged against personnel performing private 
security functions or personnel performing such functions believe a 
weapon was so discharged; or (5) 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. As a regular record keeping requirement, private 
security contractors are required to keep appropriate records of 
personnel by registering in the Synchronized Predeployment Operational 
Tracker the equipment and weapons used by its personnel. The complexity 
of the work to prepare these records requires the expertise equivalent 
to that of a GS-11, step 5 with clerical and analytical skills to 
create the documents.
    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.
    DoD invites comments from small business concerns and other 
interested parties on the expected impact of this rule on small 
entities.
    DoD will also consider comments from small entities concerning the 
existing regulations in subparts affected by this rule in accordance 
with 5 U.S.C. 610. Interested parties must submit such comments 
separately and should cite 5 U.S.C. 610 (DFARS Case 2015-D021), in 
correspondence.

V. Paperwork Reduction Act

    The rule contains information collection requirements that require 
the approval of the Office of Management and Budget under the Paperwork 
Reduction Act (44 U.S.C. chapter 35). Accordingly, DoD has submitted a 
request for approval of a new information collection requirement 
concerning ``Defense Contractors Performing Private Security Functions 
Outside the United States'' to the Office of Management and Budget.
    A. Public reporting burden for this collection of information is 
estimated to average .5 hours per response, including the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information.
    The annual reporting burden estimated as follows:
    Respondents: 12.
    Responses per respondent: 4.
    Total annual responses: 48.
    Preparation hours per response: .5 hours, estimated.
    Total response Burden Hours: 24.
    B. Request for Comments Regarding Paperwork Burden.
    Written comments and recommendations on the proposed information 
collection, including suggestions for reducing this burden, should be 
sent to Ms. Jasmeet Seehra at the Office of Management and Budget, Desk 
Officer for DoD, Room 10236, New Executive Office Building, Washington, 
DC 20503, or email [email protected], with a copy to the 
Defense Acquisition Regulations System, Attn: Ms. Julie Hammond, 
OUSD(AT&L)DPAP/DARS, Room 3B941, 3060 Defense Pentagon, Washington, DC 
20301-3060. Comments can be received from 30 to 60 days after the date 
of this notice, but comments to OMB will be most useful if received by 
OMB within 30 days after the date of this notice.
    Public comments are particularly invited on: Whether this 
collection of information is necessary for the proper performance of 
functions of the DFARS, 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.
    To request more information on this proposed information collection 
or to obtain a copy of the proposal and associated collection 
instruments, please write to the Defense Acquisition Regulations 
System, Attn: Ms. Julie Hammond, OUSD(AT&L)DPAP/DARS, Room 3B941, 3060 
Defense Pentagon, Washington, DC 20301-3060, or email 
[email protected]. Include DFARS Case 2015-D021 in the subject line of 
the message.

List of Subjects in 48 CFR Parts 216, 225, and 252

    Government procurement.

Jennifer L. Hawes,
Editor, Defense Acquisition Regulations System.

    Therefore, 48 CFR parts 216, 225, and 252 are amended as follows:

0
1. The authority citation for 48 CFR parts 216, 225, and 252 continue 
to read as follows:

    Authority:  41 U.S.C. 1303 and CFR chapter 1.

PART 216--TYPES OF CONTRACTS


216.405-2-71  [Amended]

0
2. In section 216.405-2-71, amend paragraph (b) by removing ``FAR 
52.225-26, Contractors Performing Private Security Functions'' and 
adding ``252.225-7039, Defense Contractors Performing Private Security 
Functions Outside the United States'';

PART 225--FOREIGN ACQUISITION


225.302-6  [Amended]

0
3. Amend section 225.302-6 introductory text by adding ``instead of FAR 
clause 52.225-26, Contractors Performing Private Security Functions 
Outside the United States,'' after ``Functions Outside the United 
States,'';

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
4. Amend section 252.225-7039 by--
0
a. Removing clause date ``(JAN 2015)'' and adding ``(DEC 2015)'' in its 
place;
0
b. Redesignating paragraphs (a) and (b) as paragraphs (c) and (f) 
respectively;
0
c. Adding new paragraphs (a) and (b);
0
d. Revising newly designated paragraph (c);
0
e. Adding paragraphs (d) and (e);
0
f. In newly designated paragraph (f), removing ``paragraph (b)'' and 
adding ``paragraph (f)'' in its place.
    The additions and revisions read as follows:

[[Page 81498]]

252.225-7039  Defense Contractors Performing Private Security Functions 
Outside the United States.

* * * * *
    (a) Definitions. As used in this clause--
    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 response 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.
    Private security functions means the following activities engaged 
in by a contractor:
    (1) Guarding of personnel, facilities, designated sites or property 
of a Federal agency, the contractor or subcontractor, or a third party.
    (2) 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) 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 designated area. Designated areas are 
areas outside the United States of--
    (1) Contingency operations;
    (2) Combat operations, as designated by the Secretary of Defense;
    (3) Other significant military operations (as defined in 32 CFR 
part 159), designated by the Secretary of Defense upon agreement of the 
Secretary of State;
    (4) Peace operations, consistent with Joint Publication 3-07.3; or
    (5) Other military operations or military exercises, when 
designated by the Combatant Commander.
    (c) Requirements. The Contractor shall--
    (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 any orders, directives or 
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, accounting for and registering in Synchronized 
Predeployment and Operational Tracker (SPOT), weapons to be carried by 
or available to be used by personnel performing private security 
functions;
    (iii) Identifying and registering in SPOT armored vehicles, 
helicopters and other military vehicles operated by Contractors 
performing private security functions; and
    (iv) In accordance with orders and instructions established by the 
applicable Combatant Commander, 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;
    (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 
Combatant Commander 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 Combatant 
Commander or relevant Chief of Mission for personnel performing private 
security functions; and
    (3) Provide full cooperation with any Government-authorized 
investigation of incidents reported pursuant to paragraph (c)(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; and
    (4) Comply with ANSI/ASIS PSC.1-2012, American National Standard, 
Management System for Quality of Private Security Company Operations--
Requirements with Guidance or the International Standard ISO 18788, 
Management System for Private Security Operations--Requirements with 
Guidance (located at http://www.acq.osd.mil/log/PS/psc.html).
    (d) 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 or subcontractor 
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.
    (e) 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

[[Page 81499]]

contracting activity to provide required oversight.

[FR Doc. 2015-32874 Filed 12-29-15; 8:45 am]
 BILLING CODE 5001-06-P