81_FR_42685 81 FR 42559 - Defense Federal Acquisition Regulation Supplement: Defense Contractors Performing Private Security Functions (DFARS Case 2015-D021)

81 FR 42559 - 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 81, Issue 126 (June 30, 2016)

Page Range42559-42562
FR Document2016-15247

DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to consolidate all requirements for contractors performing private security functions outside the United States applicable to DoD contracts in the DFARS and make changes regarding applicability and high-level quality assurance standards.

Federal Register, Volume 81 Issue 126 (Thursday, June 30, 2016) 
[Federal Register Volume 81, Number 126 (Thursday, June 30, 2016)]
[Rules and Regulations]
[Pages 42559-42562]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-15247]


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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: Final rule.

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SUMMARY: DoD is issuing a final rule amending the Defense Federal 
Acquisition Regulation Supplement (DFARS) to consolidate all 
requirements for contractors performing private security functions 
outside the United States applicable to DoD contracts in the DFARS and 
make changes regarding applicability and high-level quality assurance 
standards.

DATES: Effective June 30, 2016.

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

SUPPLEMENTARY INFORMATION:

I. Background

    DoD published a proposed rule in the Federal Register at 80 FR 
81496 on December 30, 2015, to consolidate all requirements for DoD 
contractors performing private security functions in certain designated 
operational areas in the DFARS at 225.302 and the clause at 252.225-
7039, Defense Contractors Performing Private Security Functions Outside 
the United States. The rule also proposed to identify the international 
high-quality assurance standard ``ISO 18788: Management System for 
Private Security Operations'' as an approved alternative to the 
American standard ``ANSI/ASIS PSC.1-2012'' currently required by DFARS 
clause 252.225-7039. One respondent submitted public comments in 
response to the proposed rule.

II. Discussion and Analysis

    DoD reviewed the public comments in the development of the final 
rule. There are no changes from the proposed rule in the final rule. A 
discussion of the comments is provided as follows:

A. Analysis of Public Comments

    Comment: The respondent proposed that the clause at DFARS 252.225-
7039 be amended to require a contractor to demonstrate compliance with 
the American National Standard, ANSI/ASIS PSC.1-2012, and/or the 
International Standard, ISO 18788, by producing a valid certificate of 
compliance from a nationally accredited certification body.
    Response: DoD does not have the statutory authority to require a 
certificate of compliance from a certification body accredited by a 
national accreditation body. Section 833 of the National Defense 
Authorization Act for Fiscal Year 2011 only authorized that the 
Secretary of Defense ``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.'' 
Therefore, no changes are made in the rule.
    Comment: The respondent also proposed that the clause explicitly 
state that the requirements of ANSI/ASIS PSC.1-2012 ``are incumbent 
upon subcontractors on relevant DoD contracts.''
    Response: The Government does not have privity of contract with 
subcontractors. However, paragraph (f) of the clause requires 
contractors to include the substance of the clause, to include 
paragraph (c)(4) of the clause, in covered subcontracts. Paragraph 
(c)(4) of

[[Page 42560]]

the clause requires compliance with ANSI/ASIS PSC.1-2012 or ISO 18788.

B. Other Changes

    For consistency in use of terminology in DFARS clause 252.225-7039, 
in paragraphs (c)(1) and (2), the term ``employees of the Contractor'' 
is removed and replaced with ``Contractor personnel'' in both places.

III. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold and for Commercial Items, Including Commercially Available 
Off-the Shelf Items

    This rule amends the DFARS to consolidate all requirements for 
contractors performing private security functions outside the United 
States applicable to DoD contracts in the DFARS and makes changes 
regarding applicability and high-level quality assurance standards. 
DFARS clause 252.225-7039, Defense Contractors Performing Private 
Security Functions Outside the United States, and its prescription at 
DFARS 225.302-6 are amended. The revisions, however, do not affect 
applicability of the clause at or below the simplified acquisition 
threshold or to commercial item acquisitions.

IV. 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.

V. Regulatory Flexibility Act

    A final regulatory flexibility analysis (FRFA) has been prepared 
consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. 
The FRFA is summarized as follows:
    This final rule amends the Defense Federal Acquisition Regulation 
Supplement (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 Operations'' as an 
approved alternative to the American standard ``ANSI/ASIS PSC.1-2012'' 
currently required by DFARS clause 252.225-7039.
    No comments were received from the public in response to the 
initial regulatory flexibility analysis.
    This final 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.
    There are no known significant alternatives to the rule. The impact 
of this rule on small business is not expected to be significant.

VI. Paperwork Reduction Act

    This rule contains information collection requirements under the 
Paperwork Reduction Act (44 U.S.C. chapter 35). The Office of 
Management and Budget (OMB) has assigned OMB Control Number 0704-0549, 
entitled ``Defense Federal Acquisition Regulation Supplement (DFARS) 
part 225, Foreign Acquisition, and Defense Contractors Performing 
Private Security Functions Outside the United States.''

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 continues 
to read as follows:

    Authority: 41 U.S.C. 1303 and 48 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 Preforming Private Security Functions'' and 
adding ``252.225-7039, Defense Contractors Performing Private Security 
Functions Outside the United States'' in its place.

PART 225--FOREIGN ACQUISITION


225.302-6  [Amended]

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

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
4. Amend section 252.225-7039 by--
0
a. Removing the clause date ``(JAN 2015)'' and adding ``(JUN 2016)'' in 
its place;

[[Page 42561]]

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 redesignated paragraph (c);
0
e. Adding paragraphs (d) and (e);
0
f. In newly redesignated paragraph (f), removing ``paragraph (b)'' and 
adding ``paragraph (f)'' in its place.
    The additions and revision read as follows:


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 Contractor personnel 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 Contractor personnel 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;
    (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

[[Page 42562]]

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 contracting 
activity to provide required oversight.
* * * * *
[FR Doc. 2016-15247 Filed 6-29-16; 8:45 am]
 BILLING CODE 5001-06-P

Federal Register / Vol. 81, No. 126 / Thursday, June 30, 2016 / Rules and Regulations 42559 PART 212—ACQUISITION OF ‘‘and plan to use the pilot program’’ in SUPPLEMENTARY INFORMATION: COMMERCIAL ITEMS its place. I. Background 212.7100 [Amended] PART 252—SOLICITATION DoD published a proposed rule in the ■ 2. Section 212.7100 is amended by PROVISIONS AND CONTRACT Federal Register at 80 FR 81496 on removing ‘‘(Pub. L. 111–383)’’ and CLAUSES December 30, 2015, to consolidate all adding ‘‘(Pub. L. 111–383), as modified requirements for DoD contractors 252.212–7002 [Amended] by section 892 of the National Defense performing private security functions in Authorization Act for Fiscal Year 2016 ■ 6. Amend section 252.212–7002 by— certain designated operational areas in (Pub. L. 114–92)’’ in its place. ■ a. Removing the clause date ‘‘(JUN the DFARS at 225.302 and the clause at ■ 3. Section 212.7101 is revised to read 2012)’’ and adding ‘‘(JUN 2016)’’ in its 252.225–7039, Defense Contractors as follows: place; Performing Private Security Functions ■ b. In paragraph (a)— Outside the United States. The rule also 212.7101 Definitions. ■ i. For the definition of proposed to identify the international As used in this subpart— ‘‘nondevelopmental item’’, removing high-quality assurance standard ‘‘ISO Military-purpose nondevelopmental ‘‘FAR 2.101 and for the purpose of this 18788: Management System for Private item means a nondevelopmental item subpart also includes’’ and adding ‘‘FAR Security Operations’’ as an approved that meets a validated military 2.101 and also includes’’ in its place, alternative to the American standard requirement, as determined in writing and removing ‘‘of DFARS 212.7102– ‘‘ANSI/ASIS PSC.1–2012’’ currently by the responsible program manager, 2(d)(1)’’ and adding ‘‘at DFARS required by DFARS clause 252.225– and has been developed exclusively at 212.7102–1(c)(1)’’ in its place; and 7039. One respondent submitted public private expense. An item shall not be ■ ii. Removing the definition of comments in response to the proposed considered to be developed at private ‘‘nontraditional defense contractor’’; rule. expense if development of the item was ■ c. In paragraph (b), removing ‘‘Nondevelopmental Items,’’ and adding II. Discussion and Analysis paid for in whole or in part through— (1) Independent research and ‘‘Nondevelopmental Items, as modified DoD reviewed the public comments in development costs or bid and proposal by section 892 of the National Defense the development of the final rule. There costs, per the definition in FAR 31.205– Authorization Act for Fiscal Year 2016 are no changes from the proposed rule 18, that have been reimbursed directly (Pub. L. 114–92),’’ in its place; and in the final rule. A discussion of the or indirectly by a Federal agency or ■ d. Removing paragraph (c). comments is provided as follows: have been submitted to a Federal agency [FR Doc. 2016–15256 Filed 6–29–16; 8:45 am] A. Analysis of Public Comments for reimbursement; or BILLING CODE 5001–06–P Comment: The respondent proposed (2) Foreign government funding. that the clause at DFARS 252.225–7039 Nondevelopmental item is defined in be amended to require a contractor to FAR 2.101 and also includes previously DEPARTMENT OF DEFENSE demonstrate compliance with the developed items of supply that require American National Standard, ANSI/ modifications other than those Defense Acquisition Regulations System ASIS PSC.1–2012, and/or the customarily available in the commercial International Standard, ISO 18788, by marketplace if such modifications are producing a valid certificate of consistent with the requirement at 48 CFR Parts 216, 225, and 252 compliance from a nationally accredited 212.7102–1(c)(1). [Docket DARS–2015–0045] certification body. 212.7102–1 [Amended] RIN 0750–AI69 Response: DoD does not have the statutory authority to require a ■ 4. Amend section 212.7102–1 by— Defense Federal Acquisition certificate of compliance from a ■ a. In the introductory text, removing Regulation Supplement: Defense certification body accredited by a ‘‘The contracting officer may enter into Contractors Performing Private national accreditation body. Section 833 contracts with nontraditional defense Security Functions (DFARS Case of the National Defense Authorization contractors for’’ and adding ‘‘The 2015–D021) Act for Fiscal Year 2011 only authorized contracting officer may utilize this pilot that the Secretary of Defense ‘‘may program to enter into contracts for’’ in AGENCY: Defense Acquisition provide for the consideration of such its place; Regulations System, Department of certifications as a factor in the ■ b. Removing paragraph (a); Defense (DoD). evaluation of proposals for award of a ■ c. Redesignating paragraphs (b) ACTION: Final rule. covered contract for the provision of through (e) as paragraphs (a) through private security functions.’’ Therefore, (d), respectively; SUMMARY: DoD is issuing a final rule no changes are made in the rule. ■ d. In the newly redesignated amending the Defense Federal Comment: The respondent also paragraph (b), removing ‘‘$53.5 million’’ Acquisition Regulation Supplement proposed that the clause explicitly state and adding ‘‘$100 million’’ in its place; (DFARS) to consolidate all requirements that the requirements of ANSI/ASIS and for contractors performing private PSC.1–2012 ‘‘are incumbent upon ■ e. In the newly redesignated security functions outside the United subcontractors on relevant DoD paragraph (c)(2), removing ‘‘(d)(1)’’ and States applicable to DoD contracts in the contracts.’’ DFARS and make changes regarding srobinson on DSK5SPTVN1PROD with RULES adding ‘‘(c)(1)’’ in its place. Response: The Government does not applicability and high-level quality have privity of contract with 212.7103 [Amended] assurance standards. subcontractors. However, paragraph (f) ■ 5. Amend 212.7103 by removing ‘‘in DATES: Effective June 30, 2016. of the clause requires contractors to all solicitations’’ and adding ‘‘in FOR FURTHER INFORMATION CONTACT: Ms. include the substance of the clause, to solicitations’’ in its place, and removing Julie Hammond, telephone 571–372– include paragraph (c)(4) of the clause, in ‘‘for this pilot program’’ and adding 6174. covered subcontracts. Paragraph (c)(4) of VerDate Sep<11>2014 20:00 Jun 29, 2016 Jkt 238001 PO 00000 Frm 00107 Fmt 4700 Sfmt 4700 E:\FR\FM\30JNR1.SGM 30JNR1

42560 Federal Register / Vol. 81, No. 126 / Thursday, June 30, 2016 / Rules and Regulations the clause requires compliance with Contractors Performing Private Security personnel. The complexity of the work ANSI/ASIS PSC.1–2012 or ISO 18788. Functions Outside the Unites States, in to prepare these records requires the DFARS 225.302 and the clause at expertise equivalent to that of a GS–11, B. Other Changes DFARS 252.225–7039, Defense step 5 with clerical and analytical skills For consistency in use of terminology Contractors Performing Private Security to create the documents. in DFARS clause 252.225–7039, in Functions Outside the United States. There are no known significant paragraphs (c)(1) and (2), the term The objectives of this rule are as alternatives to the rule. The impact of ‘‘employees of the Contractor’’ is follows: this rule on small business is not removed and replaced with ‘‘Contractor • Provide DoD contracting officers expected to be significant. personnel’’ in both places. and contractors a single clause covering all requirements related to the VI. Paperwork Reduction Act III. Applicability to Contracts at or performance of private security Below the Simplified Acquisition This rule contains information functions outside the United States that collection requirements under the Threshold and for Commercial Items, may be updated by DoD as policies are Including Commercially Available Off- Paperwork Reduction Act (44 U.S.C. issued that affect only defense chapter 35). The Office of Management the Shelf Items contractors. and Budget (OMB) has assigned OMB This rule amends the DFARS to • Identify the international high- Control Number 0704–0549, entitled consolidate all requirements for quality assurance standard ‘‘ISO 18788: ‘‘Defense Federal Acquisition contractors performing private security Management System for Private Security Regulation Supplement (DFARS) part functions outside the United States Operations’’ as an approved alternative 225, Foreign Acquisition, and Defense applicable to DoD contracts in the to the American standard ‘‘ANSI/ASIS Contractors Performing Private Security DFARS and makes changes regarding PSC.1–2012’’ currently required by DFARS clause 252.225–7039. Functions Outside the United States.’’ applicability and high-level quality assurance standards. DFARS clause No comments were received from the List of Subjects in 48 CFR Parts 216, 252.225–7039, Defense Contractors public in response to the initial 225, and 252 Performing Private Security Functions regulatory flexibility analysis. This final rule will apply to defense Government procurement. Outside the United States, and its prescription at DFARS 225.302–6 are contractors performing private security Jennifer L. Hawes, amended. The revisions, however, do functions outside of the United States in Editor, Defense Acquisition Regulations not affect applicability of the clause at designated operational areas under DoD System. or below the simplified acquisition contracts. According to data available in threshold or to commercial item the Federal Procurement Data System Therefore, 48 CFR parts 216, 225, and acquisitions. for fiscal year (FY) 2013, DoD awarded 252 are amended as follows: 159 contracts that required performance ■ 1. The authority citation for 48 CFR IV. Executive Orders 12866 and 13563 outside the United States, although not parts 216, 225, and 252 continues to Executive Orders (E.O.s) 12866 and necessarily in a designated operation read as follows: 13563 direct agencies to assess all costs area, and cited the National American Authority: 41 U.S.C. 1303 and 48 CFR and benefits of available regulatory Industry Classification System code chapter 1. alternatives and, if regulation is 561612, Security Guards and Patrol necessary, to select regulatory Services, of which 33 contracts (21%) PART 216—TYPES OF CONTRACTS approaches that maximize net benefits were awarded to small businesses. In FY (including potential economic, 2014, DoD awarded 123 such contracts, 216.405–2–71 [Amended] environmental, public health and safety of which 31 contracts (25%) were to ■ 2. In section 216.405–2–71, amend effects, distributive impacts, and small businesses. paragraph (b) by removing ‘‘FAR equity). E.O. 13563 emphasizes the The private security contractors are 52.225–26, Contractors Preforming importance of quantifying both costs required to report incidents when: (1) A Private Security Functions’’ and adding and benefits, of reducing costs, of weapon is discharged by personnel ‘‘252.225–7039, Defense Contractors harmonizing rules, and of promoting performing private security functions; Performing Private Security Functions flexibility. This is not a significant (2) personnel performing private Outside the United States’’ in its place. regulatory action and, therefore, was not security functions are attacked, killed, subject to review under section 6(b) of or injured; (3) persons are killed or PART 225—FOREIGN ACQUISITION E.O. 12866, Regulatory Planning and injured or property is destroyed as a result of conduct by Contractor 225.302–6 [Amended] Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. personnel; (4) a weapon is discharged ■ 3. Amend section 225.302–6 804. against personnel performing private introductory text by removing ‘‘Outside security functions or personnel the United States,’’ and adding ‘‘Outside V. Regulatory Flexibility Act performing such functions believe a the United States, instead of FAR clause A final regulatory flexibility analysis weapon was so discharged; or (5) active, 52.225–26, Contractors Performing (FRFA) has been prepared consistent non-lethal countermeasures (other than Private Security Functions Outside the with the Regulatory Flexibility Act, 5 the discharge of a weapon) are United States,’’ in its place. U.S.C. 601, et seq. The FRFA is employed by personnel performing summarized as follows: private security functions in response to PART 252—SOLICITATION srobinson on DSK5SPTVN1PROD with RULES This final rule amends the Defense a perceived immediate threat. As a PROVISIONS AND CONTRACT Federal Acquisition Regulation regular record keeping requirement, CLAUSES Supplement (DFARS) to consolidate all private security contractors are required requirements for DoD contractors to keep appropriate records of personnel ■ 4. Amend section 252.225–7039 by— performing private security functions by registering in the Synchronized ■ a. Removing the clause date ‘‘(JAN outside the U.S. from the FAR 25.302 Predeployment Operational Tracker the 2015)’’ and adding ‘‘(JUN 2016)’’ in its and the clause at FAR 52.225–26, equipment and weapons used by its place; VerDate Sep<11>2014 20:00 Jun 29, 2016 Jkt 238001 PO 00000 Frm 00108 Fmt 4700 Sfmt 4700 E:\FR\FM\30JNR1.SGM 30JNR1

Federal Register / Vol. 81, No. 126 / Thursday, June 30, 2016 / Rules and Regulations 42561 ■ b. Redesignating paragraphs (a) and (2) Combat operations, as designated requirements established by 32 CFR part (b) as paragraphs (c) and (f), by the Secretary of Defense; 159; respectively; (3) Other significant military (ii) Applicable laws and regulations of ■ c. Adding new paragraphs (a) and (b); operations (as defined in 32 CFR part the United States and the host country ■ d. Revising newly redesignated 159), designated by the Secretary of and applicable treaties and international paragraph (c); Defense upon agreement of the agreements regarding performance of ■ e. Adding paragraphs (d) and (e); Secretary of State; private security functions; ■ f. In newly redesignated paragraph (f), (4) Peace operations, consistent with (iii) Orders, directives, and removing ‘‘paragraph (b)’’ and adding Joint Publication 3–07.3; or instructions issued by the applicable ‘‘paragraph (f)’’ in its place. (5) Other military operations or Combatant Commander or relevant The additions and revision read as military exercises, when designated by Chief of Mission relating to weapons, follows: the Combatant Commander. equipment, force protection, security, (c) Requirements. The Contractor health, safety, or relations and 252.225–7039 Defense Contractors shall— interaction with locals; and Performing Private Security Functions (1) Ensure that all Contractor (iv) Rules on the use of force issued Outside the United States. personnel who are responsible for by the applicable Combatant * * * * * performing private security functions Commander or relevant Chief of Mission (a) Definitions. As used in this under this contract comply with 32 CFR for personnel performing private clause— part 159 and any orders, directives, or security functions; Full cooperation—(1) Means instructions to contractors performing (3) Provide full cooperation with any disclosure to the Government of the private security functions that are Government-authorized investigation of information sufficient to identify the identified in the contract for— incidents reported pursuant to nature and extent of the incident and (i) Registering, processing, accounting paragraph (c)(1)(iv) of this clause and the individuals responsible for the for, managing, overseeing and keeping incidents of alleged misconduct by conduct. It includes providing timely appropriate records of personnel personnel performing private security and complete response to Government performing private security functions; functions under this contract by auditors’ and investigators’ requests for (ii) Authorizing, accounting for and providing— documents and access to employees registering in Synchronized (i) Access to employees performing with information; Predeployment and Operational Tracker private security functions; and (2) Does not foreclose any contractor (SPOT), weapons to be carried by or (ii) Relevant information in the rights arising in law, the FAR or the available to be used by personnel possession of the Contractor regarding terms of the contract. It does not performing private security functions; the incident concerned; and require— (iii) Identifying and registering in (4) Comply with ANSI/ASIS PSC.1– (i) The contractor to waive its SPOT armored vehicles, helicopters and 2012, American National Standard, attorney-client privilege or the other military vehicles operated by Management System for Quality of protections afforded by the attorney Contractors performing private security Private Security Company Operations— work product doctrine; or functions; and Requirements with Guidance or the (ii) Any officer, director, owner, or (iv) In accordance with orders and International Standard ISO 18788, employee of the contractor, including a instructions established by the Management System for Private Security sole proprietor, to waive his or her applicable Combatant Commander, Operations—Requirements with attorney-client privilege or Fifth reporting incidents in which— Guidance (located at http:// Amendment rights; and (A) A weapon is discharged by www.acq.osd.mil/log/PS/psc.html). (3) Does not restrict the contractor personnel performing private security (d) Remedies. In addition to other from— functions; remedies available to the Government— (i) Conducting an internal (B) Personnel performing private (1) The Contracting Officer may direct investigation; or security functions are attacked, killed, the Contractor, at its own expense, to (ii) Defending a proceeding or dispute or injured; remove and replace any Contractor or arising under the contract or related to (C) Persons are killed or injured or subcontractor personnel performing a potential or disclosed violation. property is destroyed as a result of private security functions who fail to Private security functions means the conduct by Contractor personnel; comply with or violate applicable following activities engaged in by a (D) A weapon is discharged against requirements of this clause or 32 CFR contractor: personnel performing private security part 159. Such action may be taken at (1) Guarding of personnel, facilities, functions or personnel performing such the Government’s discretion without designated sites or property of a Federal functions believe a weapon was so prejudice to its rights under any other agency, the contractor or subcontractor, discharged; or provision of this contract; or a third party. (E) Active, non-lethal (2) The Contractor’s failure to comply (2) Any other activity for which countermeasures (other than the with the requirements of this clause will personnel are required to carry weapons discharge of a weapon) are employed by be included in appropriate databases of in the performance of their duties in personnel performing private security past performance and considered in any accordance with the terms of this functions in response to a perceived responsibility determination or contract. immediate threat; evaluation of past performance; and (b) Applicability. If this contract is (2) Ensure that Contractor personnel (3) If this is an award-fee contract, the srobinson on DSK5SPTVN1PROD with RULES performed both in a designated area and who are responsible for performing Contractor’s failure to comply with the in an area that is not designated, the private security functions under this requirements of this clause shall be clause only applies to performance in contract are briefed on and understand considered in the evaluation of the the designated area. Designated areas their obligation to comply with— Contractor’s performance during the are areas outside the United States of— (i) Qualification, training, screening relevant evaluation period, and the (1) Contingency operations; (including, if applicable, thorough Contracting Officer may treat such background checks) and security failure to comply as a basis for reducing VerDate Sep<11>2014 20:00 Jun 29, 2016 Jkt 238001 PO 00000 Frm 00109 Fmt 4700 Sfmt 4700 E:\FR\FM\30JNR1.SGM 30JNR1

42562 Federal Register / Vol. 81, No. 126 / Thursday, June 30, 2016 / Rules and Regulations or denying award fees for such period that contracts executed by DoD as a for which DoD serves as an item or for recovering all or part of award result of the transfer of contracts from manager for products on behalf of the fees previously paid for such period. the General Services Administration or General Services Administration, to the (e) Rule of construction. The duty of for which DoD serves as an item extent that such contracts are for the the Contractor to comply with the manager for products on behalf of the purchase of products by other Federal requirements of this clause shall not be General Services Administration shall agencies or State or local governments. reduced or diminished by the failure of not be subject to the requirements under There were no significant issues a higher- or lower-tier Contractor or 10 U.S.C. chapter 148 (National Defense raised by the public in response to the subcontractor to comply with the clause Technology and Industrial Base, initial regulatory flexibility analysis. requirements or by a failure of the Defense Investment, and Defense DoD does not anticipate frequent contracting activity to provide required Conversion), to the extent that such application of this rule. The rule oversight. contracts are for the purchase of removes the domestic source restriction * * * * * products by other Federal agencies or for the specified items in the specified [FR Doc. 2016–15247 Filed 6–29–16; 8:45 am] State or local governments. One circumstances. In the rare instance in BILLING CODE 5001–06–P respondent submitted public comments which the circumstances of the statute in response to the proposed rule. apply, it is possible that an item could be acquired from a foreign source, rather II. Discussion and Analysis DEPARTMENT OF DEFENSE than a domestic source, which could There are no changes from the potentially be a small business. It is not Defense Acquisition Regulations proposed rule made in the final rule. possible to estimate the number of small System The one respondent that submitted a entities that may be affected, because it comment fully supported the proposed is unknown the extent to which the 48 CFR Part 225 rule. given circumstances may occur. [Docket DARS–2016–0007] III. Applicability to Contracts at or There are no projected reporting, Below the Simplified Acquisition recordkeeping, or other compliance RIN 0750–AI88 requirements. Threshold and for Commercial Items, Including Commercially Available Off- DoD has not identified any Defense Federal Acquisition the-Shelf Items alternatives that would minimize any Regulation Supplement: Treatment of economic impact on small entities and Interagency and State and Local This case does not add any new still meet the requirements of the Purchases (DFARS Case 2016–D009) provisions or clauses or impact any statute. AGENCY: Defense Acquisition existing provisions or clauses. VI. Paperwork Reduction Act Regulations System, Department of IV. Executive Orders 12866 and 13563 Defense (DoD). The rule does not contain any Executive Orders (E.O.s) 12866 and information collection requirements that ACTION: Final rule. 13563 direct agencies to assess all costs require the approval of the Office of SUMMARY: DoD is issuing a final rule and benefits of available regulatory Management and Budget under the amending the Defense Federal alternatives and, if regulation is Paperwork Reduction Act (44 U.S.C. Acquisition Regulation Supplement necessary, to select regulatory chapter 35). (DFARS) to implement a section of the approaches that maximize net benefits (including potential economic, List of Subjects in 48 CFR Part 225 National Defense Authorization Act for Fiscal Year 2016 that is entitled environmental, public health and safety Government procurement. ‘‘Treatment of Interagency and State and effects, distributive impacts, and equity). E.O. 13563 emphasizes the Jennifer L. Hawes, Local Purchases.’’ This section provides importance of quantifying both costs Editor, Defense Acquisition Regulations that contracts executed by DoD as a System. result of the transfer of contracts from and benefits, of reducing costs, of harmonizing rules, and of promoting Therefore, 48 CFR part 225 is the General Services Administration or flexibility. This is not a significant amended as follows: for which DoD serves as an item manager for products on behalf of the regulatory action and, therefore, was not subject to review under section 6(b) of PART 225—FOREIGN ACQUISITION General Services Administration shall not be subject to certain domestic source E.O. 12866, Regulatory Planning and ■ 1. The authority citation for 48 CFR restrictions, to the extent that such Review, dated September 30, 1993. This part 225 continues to read as follows: contracts are for the purchase of rule is not a major rule under 5 U.S.C. 804. Authority: 41 U.S.C. 1303 and 48 CFR products by other Federal agencies or chapter 1. State or local governments. V. Regulatory Flexibility Act ■ 2. Amend section 225.7002–2 by DATES: Effective June 30, 2016. A final regulatory flexibility analysis adding paragraph (o) to read as follows: FOR FURTHER INFORMATION CONTACT: Ms. (FRFA) has been prepared consistent Amy G. Williams, telephone 571–372– with the Regulatory Flexibility Act, 5 225.7002–2 Exceptions. 6106. U.S.C. 601, et seq. The FRFA is * * * * * SUPPLEMENTARY INFORMATION: summarized as follows: (o) Acquisitions that are interagency, This rule implements section 897 of State, or local purchases that are srobinson on DSK5SPTVN1PROD with RULES I. Background the National Defense Authorization Act executed by DoD as a result of the DoD published a proposed rule in the for Fiscal Year 2016. The objective of transfer of contracts from the General Federal Register at 81 FR 17053 on this rule is to eliminate the domestic Services Administration or for which March 25, 2016, to implement section source restrictions of 10 U.S.C. chapter DoD serves as an item manager for 897 of the National Defense 148 when contracts executed by DoD as products on behalf of the General Authorization Act for Fiscal Year 2016 a result of the transfer of contracts from Services Administration. According to (Pub. L. 114–92). Section 897 provides the General Services Administration or section 897 of the National Defense VerDate Sep<11>2014 20:00 Jun 29, 2016 Jkt 238001 PO 00000 Frm 00110 Fmt 4700 Sfmt 4700 E:\FR\FM\30JNR1.SGM 30JNR1


Document Created: 2018-02-08 07:45:19
Document Modified: 2018-02-08 07:45:19
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule.
DatesEffective June 30, 2016.
ContactMs. Julie Hammond, telephone 571-372- 6174.
FR Citation81 FR 42559 
RIN Number0750-AI69
CFR Citation48 CFR 216
48 CFR 225
48 CFR 252
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