Defense Contractors Performing Private Security Functions Outside the United States

81496

Federal Register / Vol. 80, No. 250 / Wednesday, December 30, 2015 / Proposed Rules
allow 30 days for posting of comments
submitted by mail).
FOR FURTHER INFORMATION CONTACT: Ms.
Julie Hammond, telephone 571–372–
6174.

DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 216, 225, and 252

SUPPLEMENTARY INFORMATION:

[Docket DARS–2015–0045]

I. Background

RIN 0750–AI69

Defense Federal Acquisition
Regulation Supplement: Defense
Contractors Performing Private
Security Functions (DFARS Case
2015–D021)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Proposed rule.
AGENCY:

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:
Æ 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.
Æ Email: [email protected]. Include
DFARS Case 2015–D021 in the subject
line of the message.
Æ Fax: 571–372–6094.
Æ 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

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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

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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 highquality assurance standard ‘‘ISO 18788:
Management System for Private Security

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Federal Register / Vol. 80, No. 250 / Wednesday, December 30, 2015 / Proposed Rules
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

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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 Jasmeet_K._Seehra@
omb.eop.gov, 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

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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:
■ 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]

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]

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

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Federal Register / Vol. 80, No. 250 / Wednesday, December 30, 2015 / Proposed Rules

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

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*

*
*
*
*
(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—

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(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,

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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

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Federal Register / Vol. 80, No. 250 / Wednesday, December 30, 2015 / Proposed Rules
contracting activity to provide required
oversight.
[FR Doc. 2015–32874 Filed 12–29–15; 8:45 am]
BILLING CODE 5001–06–P

DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Part 217
[Docket DARS–2015–0067]
RIN 0750–AI80

Defense Federal Acquisition
Regulation Supplement: Multiyear
Contract Requirements (DFARS Case
2015–D009)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Proposed rule.
AGENCY:

DoD is proposing to amend
the DFARS to implement a section of
the National Defense Authorization Act
for Fiscal Year (FY) 2015 and a section
of the Department of Defense
Appropriations Act for FY 2015, which
address various requirements for
multiyear contracts.
DATES: Comments on the proposed rule
should be submitted in writing to the
address shown below on or before
February 29, 2016 to be considered in
the formation of a final rule.
ADDRESSES: Submit comments
identified by DFARS Case 2015–D009,
using any of the following methods:
Æ Regulations.gov: http://
www.regulations.gov. Submit comments
via the Federal eRulemaking portal by
entering ‘‘DFARS Case 2014–D009’’
under the heading ‘‘Enter keyword or
ID’’ and selecting ‘‘Search.’’ Select the
link ‘‘Submit a Comment’’ that
corresponds with ‘‘DFARS Case 2014–
D009.’’ Follow the instructions provided
at the ‘‘Submit a Comment’’ screen.
Please include your name, company
name (if any), and ‘‘DFARS Case 2015–
D009’’ on your attached document.
Æ Email: [email protected]. Include
DFARS Case 2015–D009 in the subject
line of the message.
Æ Fax: 571–372–6094.
Æ Mail: Defense Acquisition
Regulations System, Attn: Ms. Tresa
Sullivan, 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),

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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.
Tresa Sullivan, telephone 571–372–
6176.
SUPPLEMENTARY INFORMATION:
I. Background
DoD is proposing to amend the
DFARS to implement section 816 of the
National Defense Authorization Act
(NDAA) for Fiscal Year (FY) 2015 (Pub.
L. 113–291) and section 8010 of the
Department of Defense Appropriations
Act for FY 2015 (Division C, Title VII of
Pub. L. 113–235), which address various
requirements for multiyear contracts.
Section 816 of the NDAA amends
subsection (i) of 10 U.S.C. 2306b to
clarify that a multiyear contract may not
be entered into for a defense acquisition
program that has been specifically
authorized by law to be carried out
using multiyear authority unless the
Secretary of Defense certifies in writing
that certain conditions have been met
not later than 30 days before award of
the contract (10 U.S.C. 2306b(i)(3)).
Section 8010 makes the following
additional changes:
• A multiyear contract may not be
terminated without 30-day prior
notification to the congressional defense
committees.
• A multiyear contract may not be
entered into unless the head of the
agency ensures that—
Æ Cancellation provisions in the
contract do not include consideration of
recurring manufacturing costs of the
contractor associated with the
production of unfunded units to be
delivered under the contract;
Æ The contract provides that
payments to the contractor under the
contract shall not be made in advance
of incurred costs on funded units; and
Æ The contract does not provide for a
price adjustment based on a failure to
award a follow-on contract.
II. Discussion and Analysis
DoD is proposing to make the
following changes to the DFARS:
• Amend 217.170(b) to change ‘‘10
days before termination’’ to ‘‘30 days
before termination’’ and remove the
references to 10 U.S.C. 2306.
• Add the new section 8010
requirements for multiyear contracts to
the list of requirements at 217.172(e).
• Clarify at 217.172(h) that the
requirements are applicable to defense
acquisition programs specifically
authorized by law to be carried out
using multiyear contract authority.

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• Change 217.172(h)(2) to require the
Secretary of Defense to certify to
Congress by no later than ‘‘30 days
before entry’’ into a contract, instead of
no later than ‘‘March 1 of the year in
which the Secretary requests legislative
authority to enter’’ in such contract.
• Delete paragraph (7) at DFARS
217.172(h), which requires a
notification to congressional defense
committees 30 days prior to award, and
redesignate paragraph (h)(8) as
paragraph (7). Add to the newly
redesignated paragraph (7), a reference
to 10 U.S.C. 2306b(i)(4).
• Update cross references to 10 U.S.C.
2306b(i) throughout section 217.172.
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 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., because this rule implements
requirements for the head of agency,
which are procedures internal to the
Government. However, an initial
regulatory flexibility analysis has been
performed and is summarized as
follows:
The purpose of this proposed rule is
to amend the Defense Federal
Acquisition Regulation Supplement
(DFARS) to require the head of agency
to—
• Provide written notice to the
congressional defense committees at
least 30 days before termination of any
multiyear contract;
• For defense acquisition programs
specifically authorized by law to be
carried out using multiyear authority,
ensure the Secretary of Defense certifies
to Congress certain conditions for the
multiyear contract have been met no

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