Federal Register / Vol. 76, No. 161 / Friday, August 19, 2011 / Rules and Regulations 52133 

■ 2. Amend section 225.7002–1 by 

revising paragraph (b) to read as follows: 

225.7002–1 Restrictions. 

* * * * * 

(b) Hand or measuring tools, unless 

the tools were produced in the United 

States. For additional guidance, see PGI 

225.7002–1(b). 

■ 3. Amend section 225–7002–2 by 

revising paragraph (c) to read as follows: 

225.7002–2 Exceptions. 

* * * * * 

(c) Acquisitions of items listed in FAR 

25.104(a). 

* * * * * 

[FR Doc. 2011–20531 Filed 8–18–11; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 216, 225, and 252 

RIN 0750–AH28 

Defense Federal Acquisition 

Regulation Supplement; Contractors 

Performing Private Security Functions 

(DFARS Case 2011–D023) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Interim rule. 

SUMMARY: DoD is issuing an interim rule 

amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to implement sections of the 

National Defense Authorization Act 

(NDAA) for Fiscal Year (FY) 2008, 

which establish minimum processes 

and requirements for the selection, 

accountability, training, equipping, and 

conduct of personnel performing private 

security functions. 

DATES: Effective Date: August 19, 2011. 

Comment Date: Comments on the 

interim rule should be submitted in 

writing to the address shown below on 

or before October 18, 2011, to be 

considered in the formation of the final 

rule. 

Æ Regulations.gov: http:// 

www.regulations.gov. Submit comments 

via the Federal eRulemaking portal by 

inputting ‘‘DFARS Case 2011–D023’’ 

under the heading ‘‘Enter keyword or 

ID’’ and selecting ‘‘Search.’’ Select the 

link ‘‘Submit a Comment’’ that 

corresponds with ‘‘DFARS Case 2011– 

D023.’’ Follow the instructions provided 

at the ‘‘Submit a Comment’’ screen. 

Please include your name, company 

name (if any), and ‘‘DFARS Case 2011– 

D023’’ on your attached document. 

Æ E-mail: dfars@osd.mil. Include 

DFARS Case 2011–D023 in the subject 

line of the message. 

Æ Fax: 703–602–0350. 

Æ Mail: Defense Acquisition 

Regulations System, Attn: Meredith 

Murphy, OUSD (AT&L) DPAP/DARS, 

Room 3B855, 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: 

Meredith Murphy, Defense Acquisition 

Regulations System, OUSD (AT&L) 

DPAP/DARS, Room 3B855, 3060 

Defense Pentagon, Washington, DC 

20301–3060. Telephone 703–602–1302; 

facsimile 703–602–0350. 

SUPPLEMENTARY INFORMATION:

I. Background 

The NDAA for FY 2008 (Pub. L. 110– 

181, enacted October 28, 2008), section 

862, entitled ‘‘Contractors Performing 

Private Security Functions in Areas of 

Combat Operations or Other Significant 

Military Operations,’’ was amended by 

section 853 of the NDAA for FY 2009 

(Pub. L. 110–417, enacted October 14, 

2008) and sections 831 and 832 of the 

NDAA for FY 2011 (Pub. L. 111–383, 

enacted January 7, 2011). An interim 

final rule was published in the Federal 

Register on July 17, 2009, to meet the 

mandate of section 862 of the FY 2008 

NDAA to provide policy and guidance 

regulating the actions of DoD and other 

Governmental private security 

contractors. A clause to cover the 

interagency requirements will be 

covered by a separate and subsequent 

FAR rule currently under development. 

This interim rule is focused solely on 

providing implementing contractual 

language and a contract clause 

mandated by statute and applicable to 

DoD contracts only. While section 862 

of the 2008 NDAA required 

standardization of rules for private 

security contractors among Government 

agencies, DOD’s underlying instruction, 

the Department of Defense Instruction 

(DoDI) 3020.50, entitled ‘‘Private 

Security Contractors Operating in Areas 

of Contingency Operations, Combat 

Operations, or Other Significant 

Operations’’ at http://www.dtic.mil/whs/ 

directives/corres/pdf was written to 

cover both DoD private security 

contractors (in all contingency 

operations) and interagency private 

security contractors (in combat 

operations). This interim rule 

implements the legislation by 

establishing (1) regulations addressing 

the selection, training, equipping, and 

conduct of personnel performing private 

security functions in areas of 

contingency operations, complex 

contingency operations, or other 

military operations or exercises that are 

designated by the combatant 

commander, (2) a contract clause, and 

(3) remedies. 

Section 833 of the NDAA for FY 2011 

is entitled ‘‘Standards and Certification 

for Private Security Contractors.’’ This 

provision mandates the establishment of 

third-party certification processes for 

determining whether private security 

contractors adhere to standards for 

operational and business practices. The 

required industry standard is currently 

under development and will be 

incorporated in the DFARS once the 

standard is published. 

The regulations implementing the 

referenced statutory provisions are in 

DFARS subpart 225.3, entitled 

‘‘Contracts Performed Outside the 

United States.’’ DFARS 225.302–3, 

Definitions, provides the definition of 

‘‘private security functions’’ from 

section 862, as amended, and the 

definition of ‘‘complex contingency 

operations’’ from JP–102 (DoD 

Dictionary). This coverage does not 

apply to the performance of private 

security functions within the United 

States or outside the United States in 

areas that are not (a) contingency 

operations, (b) complex contingency 

operations, or (c) other military 

operations designated by the combatant 

commander. Importantly, DFARS 

225.302 applies to the performance of 

private security functions in the 

applicable areas, without regard to 

whether the DoD contractor is a private 

security contractor. For example, a 

contractor delivering construction 

materials in an area of contingency 

operations might subcontract with a 

private security contractor to protect its 

supplies and employees during 

delivery. Although the supplier of the 

construction materials is not a private 

security contractor, the requirements of 

DFARS 252.225–7039, Contractors 

Performing Private Security Functions, 

are applicable. As a further example, the 

same contractor, if delivering 

construction materials to a base in 

Germany is not governed, at this time, 

by the requirements and limitations of 

DFARS 252.225.7039 because Germany 

is not an area of contingency operations, 


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52134 Federal Register / Vol. 76, No. 161 / Friday, August 19, 2011 / Rules and Regulations 

complex contingency operations, or 

other significant military operations or 

exercises that are designated by the 

combatant commander. This is further 

clarified at DFARS 225.302–4, Policy. 

This subsection implements the relevant 

policy document, DoDI 3020.50, and 

assigns contractor responsibilities for 

the selection, accountability, training, 

equipping, and conduct of personnel 

performing private security functions 

under contracts in the covered areas. It 

also assigns responsibilities and 

establishes procedures for incident 

reporting, use of and accountability for 

equipment, and rules for the use of 

force. 

The statutes also include specific 

remedies for violations of the 

responsibilities and procedures in the 

law, DoDI 3020.50, and DFARS 

225.302–4. Without impinging on the 

Government’s usual contractual 

remedies (e.g., termination for default), 

the Government may, at its discretion, 

direct the contractor to remove or 

replace any personnel who fail to 

comply with, or violate, applicable 

requirements of the clause at 252.225– 

7039, Contractors Performing Private 

Security Functions. Such corrective 

actions must be taken at the contractor’s 

own expense and without prejudice to 

any other contractual rights. The statute 

prescribes additional remedies as 

follows: 

1. Contracting officers must include a 

contractor’s failure to comply in 

appropriate past-performance databases. 

2. If the contract is an award-fee 

contract, the contracting officer must 

include performance failure in the 

assessment of award fees for the 

relevant period (as well as authorizing 

the treatment of such failures as a basis 

for reducing or denying award fees for 

the relevant period or recovering all or 

part of award fees previously paid for 

such period). 

3. If the contractor fails to comply 

with the Government’s direction to 

remove or replace personnel, and such 

failure to comply is severe, prolonged, 

or repeated, the statute specifies the 

authority of the contracting officer to 

terminate the contract for default. 

II. Executive Orders 12866 and 13563 

Executive Orders (E.O.s) 12866 and 

13563 direct agencies to assess all costs 

and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). E.O. 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. This is a significant 

regulatory action, and therefore, was 

subject to review under section 6(b) of 

E.O. 12866, Regulatory Planning and 

Review, dated September 30, 1993. This 

rule is not a major rule under 5 U.S.C. 

804. 

III. Regulatory Flexibility Act 

DoD does not expect this interim 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 the statute impacts only private 

security contractors performing outside 

the United States. However, an initial 

regulatory flexibility analysis has been 

performed and is summarized as 

follows: 

DoD is issuing an interim rule 

amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to implement section 862 of 

the National Defense Authorization Act 

(NDAA) for Fiscal Year (FY) 2008, as 

amended by section 853 of the NDAA 

for FY 2009 and sections 831 and 832 

of the NDAA for FY 2011. The statutory 

provisions add requirements and 

limitations for contractors performing 

private security functions outside the 

United States in areas of contingency 

operations, complex contingency 

operations, or other military operations 

or exercises that are designated by the 

combatant commanders. The specific 

requirements are included in 

Department of Defense Instruction 

3020.50, entitled ‘‘Private Security 

Contractors Operating in Contingency 

Operations, Combat Operations, or 

Other Significant Military Operations.’’ 

These requirements are that contractors 

performing in areas such as Iraq and 

Afghanistan ensure that contractor 

personnel performing private security 

functions comply with the DoDI, 

including (1) accounting for 

Government-acquired and contractorfurnished property and (2) reporting 

incidents in which a weapon is 

discharged, personnel are attacked or 

killed or property is destroyed, or 

active, lethal countermeasures are 

employed. 

In FY 2010, DoD awarded 1,839 

contracts for performance in Iraq and 

Afghanistan. Of this total, 361, or 20 

percent, were awarded to small 

businesses. Firms performing private 

security functions in these areas were 

already required to report the 

occurrence of incidences such as those 

listed in the clause at DFARS 252.225– 

7039, Contractors Performing Private 

Security Functions, but there was no 

consistency in the manner of reporting 

or the individual to whom the report 

was to be made. This DFARS interim 

rule and DoDI 3020.50 provide this 

consistency and clarity and, in that 

sense, serve to relieve any burden on 

small businesses. 

The interim rule contains information 

collection requirements that require the 

approval of the Office of Management 

and Budget under the Paperwork 

Burden Act (44 U.S.C. chapter 35). 

There is an approved information 

collection, OMB control number 0704– 

0460, Synchronized Predeployment and 

Operational Tracker (SPOT) System, in 

the amount of approximately 150,000 

hours. DoD has determined that the 

currently approved burden hours are 

sufficient to cover these requirements. 

The rule does not duplicate, overlap, 

or conflict with any other Federal rules. 

There are no alternatives that 

accomplish the stated objectives of the 

applicable statutes. 

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 2011–D023) in 

correspondence. 

IV. 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). 

The clause at DFARS 252.225–7039, 

Contractors Performing Private Security 

Functions, requires contractors to use 

the Synchronized Predeployment and 

Operational Tracker (SPOT) system to 

(1) register personnel performing private 

security functions; (2) register weapons 

to be carried by or available to be used 

by personnel performing private 

security functions; (3) register armored 

vehicles, helicopters, and other military 

vehicles operated by contractors 

performing private security functions; 

and (4) report certain incidents in which 

personnel performing private security 

functions are involved. These 

requirements are covered by an 

approved information collection, OMB 

control number 0704–0460, 

Synchronized Predeployment and 

Operational Tracker (SPOT) System, in 

the amount of approximately 150,000 

hours. 

DoD has determined that the currently 

approved burden hours are sufficient to 


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Federal Register / Vol. 76, No. 161 / Friday, August 19, 2011 / Rules and Regulations 52135 

cover these requirements. However, 

DoD will accept comments on how the 

interim rule would impact either the 

burden or other aspects of the approved 

information collection. 

V. Determination To Issue an Interim 

Rule 

A determination has been made under 

the authority of the Secretary of Defense 

that urgent and compelling reasons exist 

to publish an interim rule without prior 

opportunity for public comment 

pursuant to 41 U.S.C. 1707 (formerly 41 

U.S.C. 418b) and FAR 1.501–3(b). This 

action is necessary because the 

requirements mandated for inclusion in 

DoD contracts by the FY 2011 NDAA 

became effective immediately upon 

enactment on January 7, 2011. Congress 

has expressed continuing concern that 

regulations for the oversight of private 

security contractors are not yet in place. 

The rule imposes new accountability 

requirements and limitations on DoD 

contractors’ use of private security 

personnel. It is imperative that these 

requirements and limitations be 

included in DoD contracts as soon as 

possible in order to ensure that all 

employees of the Contractor who are 

responsible for personnel performing 

private security functions under DoD 

contracts are briefed on and understand 

their obligation to comply with all 

qualification, training, screening 

(including, if applicable, thorough 

background checks), and security 

requirements established by DoDI 

3020.50, Private Security Contractors 

Operating in Areas of Contingency 

Operations, Combat Operations, or 

Other Significant Operations, as well as 

applicable laws and regulations of the 

United States and the host country and 

applicable treaties and international 

agreements regarding performance of 

private security functions. However, 

DoD will consider public comments 

received in response to this interim rule 

in the formation of the final rule. 

List of Subjects in 48 CFR Parts 216, 

225, and 252 

Government procurement. 

Ynette R. Shelkin, 

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 continues to 

read as follows: 

Authority: 41 U.S.C. 1303 and 48 CFR 

chapter 1. 

PART 216—TYPES OF CONTRACTS 

216.405–270 [Redesignated as 216.405–2– 

70] 

■ 2. Redesignate section 216.405–270 as 

216.405–2–70. 

■ 3. Add section 216.405–2–71 to read 

as follows: 

216.405–2–71 Award fee reduction or 

denial for failure to comply with 

requirements relating to performance of 

private security functions. 

(a) In accordance with section 862 of 

the National Defense Authorization Act 

for Fiscal Year 2008, as amended, the 

contracting officer shall include in any 

award-fee plan a requirement to review 

contractor compliance with, or violation 

of, applicable requirements of the 

contract with regard to the performance 

of private security functions in an area 

of contingency operations, complex 

contingency operations, or other 

military operations or exercises that are 

designated by the combatant 

commander (see 225.370). 

(b) In evaluating the contractor’s 

performance under a contract that 

includes the clause at 252.225–7039, 

Contractors Performing Private Security 

Functions, the contracting officer shall 

consider reducing or denying award fees 

for a period if the contractor fails to 

comply with the requirements of the 

clause during such period. The 

contracting officer’s evaluation also 

shall consider recovering all or part of 

award fees previously paid for such 

period. 

PART 225—FOREIGN ACQUISITION 

■ 4. Add sections 225.370 through 

225.370–6 to subpart 225.3 to read as 

follows: 

Subpart 225.3—Contracts Performed 

Outside the United States 

Sec. 

* * * * * 

225.370 Contractors performing private 

security functions. 

225.370–1 Scope. 

225.370–2 Applicability. 

225.370–3 Definitions. 

225.370–4 Policy. 

225.370–5 Remedies. 

225.370–6 Contract clause. 

225.370 Contractors performing private 

security functions. 

225.370–1 Scope. 

This section prescribes policy for 

implementing section 862 of the 

National Defense Authorization Act for 

Fiscal Year 2008 (Pub. L. 110–181), as 

amended by section 853 of the National 

Defense Authorization Act for Fiscal 

Year 2009 (Pub. L. 110–417) and 

sections 831 and 832 of the National 

Defense Authorization Act for Fiscal 

Year 2011 (Pub. L. 111–383). 

225.370–2 Applicability. 

This section applies to acquisitions 

for supplies and services that require 

the performance of private security 

functions in areas of— 

(a) Contingency operations (see FAR 

2.101); 

(b) Complex contingency operations; 

or 

(c) Other military operations or 

exercises that are designated by the 

combatant commander. 

225.370–3 Definitions. 

As used in this section— 

Complex contingency operations 

means large-scale peace operations (or 

elements thereof) conducted by a 

combination of military forces and 

nonmilitary organizations that involve 

one or more of the elements of peace 

operations that include one or more 

elements of other types of operations, 

such as foreign humanitarian assistance, 

nation assistance, support to 

insurgency, or support to 

counterinsurgency. 

Private security functions means 

activities engaged in by a contractor, 

including— 

(1) Guarding of personnel, facilities, 

designated sites, or property of a Federal 

agency, the contractor or subcontractor, 

or a third party; and 

(2) Any other activity for which 

personnel are required to carry weapons 

in the performance of their duties. 

225.370–4 Policy. 

(a) The policy, responsibilities, 

procedures, accountability, training, 

equipping, and conduct of personnel 

performing private security functions in 

designated areas are addressed in 

Department of Defense Instruction 

(DoDI) 3020.50, Private Security 

Contractors Operating in Contingency 

Operations, Combat Operations, or 

Other Significant Military Operations, at 

http://www.dtic.mil/whs/directives/ 

corres/pdf/302050p.pdf. 

(b) The requirements of this section 

apply to contractors that employ private 

security contractors in areas of 

contingency operations, complex 

contingency operations, or other 

military operations or exercises that are 

designated by the combatant 

commander, whether the contract is for 

the performance of private security 

functions or other supplies or services. 

(c) DoD requires contractors described 

in paragraph (b) above to— 

(1) Ensure that all employees of the 

contractor who are responsible for 


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52136 Federal Register / Vol. 76, No. 161 / Friday, August 19, 2011 / Rules and Regulations 

performing private security functions 

comply with orders, directives, and 

instructions to contractors performing 

private security functions for— 

(i) Registering, processing, accounting 

for, managing, overseeing, and keeping 

appropriate records of personnel 

performing private security functions. 

This includes ensuring the issuance, 

maintenance, and return of Personal 

Identity Verification credentials in 

accordance with FAR clause 52.204–9, 

Personal Identity Verification of 

Contractor Personnel, and DoD 

procedures, including revocation of any 

physical and/or logistical access (as 

defined by Homeland Security 

Presidential Directive (HSPD–12)) 

granted to such personnel; 

(ii) Authorizing and accounting for 

weapons to be carried by or available to 

be used by personnel performing private 

security functions; 

(A) All weapons must be registered in 

the Synchronized Predeployment 

Operational Tracker (SPOT) materiel 

tracking system. 

(B) In addition, all weapons that are 

Government-furnished property must be 

assigned a unique identifier in 

accordance with the clauses at 252.211– 

7003 and 252.245.7001 and physically 

marked in accordance with MIL–STD 

130 (current version) and DoD directives 

and instructions. The items must be 

registered in the DoD Item Unique 

Identification (IUID) Registry (https:// 

www.bpn.gov/iuid/); 

(iii) Registering and identifying 

armored vehicles, helicopters, and other 

military vehicles operated by 

contractors performing private security 

functions; 

(A) All armored vehicles, helicopters, 

and other military vehicles must be 

registered in SPOT. 

(B) In addition, all armored vehicles, 

helicopters, and other military vehicles 

that are Government-furnished property 

must be assigned a unique identifier in 

accordance with the clauses at 252.211– 

7003 and 252.245.7001 and physically 

marked in accordance with MIL–STD 

130 (current version) and DoD directives 

and instructions. The items must be 

registered in the DoD IUID Registry; and 

(iv) 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 all employees of the 

contractor who are responsible for 

personnel performing private security 

functions 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 DoDI 

3020.50; 

(ii) Applicable laws and regulations of 

the United States and the host country 

and applicable treaties and international 

agreements regarding performance of 

the functions of the private security 

contractors; 

(iii) Orders, directives, and 

instructions issued by the applicable 

commander of a combatant command 

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 commander of a 

combatant command for personnel 

performing private security functions; 

and 

(3) Cooperate with any Governmentauthorized investigation by providing 

access to employees performing private 

security functions and relevant 

information in the possession of the 

contractor. 

225.370–5 Remedies. 

(a) 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 

personnel who fail to comply with or 

violate applicable requirements. Such 

action may be taken at the Government’s 

discretion without prejudice to its rights 

under any other contract provision, 

including termination for default. 

Required contractor actions include— 

(i) Ensuring the return of personal 

identity verification credentials; 

(ii) Ensuring the return of any other 

equipment issued to the employee 

under the contract; and 

(iii) Revocation of any physical and/ 

or logistical access granted to such 

personnel; 

(2) The contracting officer shall 

include the contractor’s failure to 

comply with the requirements of this 

subpart in appropriate databases of past 

performance and consider any such 

failure in any responsibility 

determination or evaluation of past 

performance; 

(3) In the case of award-fee contracts, 

the contracting officer shall consider a 

contractor’s failure to comply with the 

requirements of this subpart in the 

evaluation of the contractor’s 

performance during the relevant 

evaluation period, and may treat such 

failure 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; and 

(4) If the contractor fails to comply 

with the Government’s direction to 

remove or replace personnel (see 

paragraph (a)(1) of this subsection), and 

such failure to comply is severe, 

prolonged, or repeated, the contracting 

officer may terminate the contract for 

default. 

(b) If the performance failures are 

significant or repeated, the contracting 

officer shall refer the contractor to the 

appropriate suspension and debarment 

official. 

225.370–6 Contract clause. 

Use the clause at 252.225–7039, 

Contractors Performing Private Security 

Functions, in all solicitations and 

contracts to be performed in areas of— 

(a) Contingency operations; 

(b) Complex contingency operations; 

or 

(c) Other military operations or 

exercises, when designated by the 

combatant commander. 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 5. Amend section 252.212–7001 as 

follows: 

■ a. Revise the clause date to read 

‘‘(AUG 2011)’’; 

■ b. Redesignate paragraphs (b)(16) 

through (b)(27) as (b)(17) through 

(b)(28); 

■ c. Add new paragraph (b)(16); and 

■ d. Revise paragraph (c). 

252.212–7001 Contract Terms and 

Conditions Required to Implement Statutes 

or Executive Orders Applicable to Defense 

Acquisitions of Commercial Items. 

* * * * * 

(b) * * * 

(16) ll 252.225–7039, Contractors 

Performing Private Security Functions 

(AUG 2011) (Section 862 of Pub. L. 110– 

181, as amended by section 853 of Pub. 

L. 110–417 and sections 831 and 832 of 

Pub. L. 111–383). 

* * * * * 

(c) In addition to the clauses listed in 

paragraph (e) of the Contract Terms and 

Conditions Required to Implement 


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Federal Register / Vol. 76, No. 161 / Friday, August 19, 2011 / Rules and Regulations 52137 

Statutes or Executive Orders— 

Commercial Items clause of this contract 

(FAR 52.212–5), the Contractor shall 

include the terms of the following 

clauses, if applicable, in subcontracts 

for commercial items or commercial 

components, awarded at any tier under 

this contract: 

(1) 252.225–7039, Contractors 

Performing Private Security Functions 

(AUG 2011) (Section 862 of Pub. L. 110– 

181, as amended by section 853 of Pub. 

L. 110–417 and sections 831 and 832 of 

Pub. L. 111–383). 

(2) 252.237–7010, Prohibition on 

Interrogation of Detainees by Contractor 

Personnel (NOV 2010) (Section 1038 of 

Pub. L. 111–84). 

(3) 252.237–7019, Training for 

Contractor Personnel Interacting with 

Detainees (SEP 2006) (Section 1092 of 

Pub. L. 108–375). 

(4) 252.247–7003, Pass-Through of 

Motor Carrier Fuel Surcharge 

Adjustment to the Cost Bearer (SEP 

2010) (Section 884 of Pub. L. 110–417). 

(5) 252.247–7023, Transportation of 

Supplies by Sea (MAY 2002) (10 U.S.C. 

2631). 

(6) 252.247–7024, Notification of 

Transportation of Supplies by Sea (MAR 

2000) (10 U.S.C. 2631). 

* * * * * 

■ 6. Add section 252.225–7039 to read 

as follows: 

252.225–7039 Contractors Performing 

Private Security Functions. 

As prescribed in 225.370–6, insert the 

following clause: 

CONTRACTORS PERFORMING PRIVATE 

SECURITY FUNCTIONS (AUG 2011) 

(a) Definition. 

Private security functions means activities 

engaged in by a contractor, including— 

(i) Guarding of personnel, facilities, 

designated sites, or property of a Federal 

agency, the contractor or subcontractor, or a 

third party; or 

(ii) Any other activity for which personnel 

are required to carry weapons in the 

performance of their duties. 

(b) Requirements. The Contractor is 

required to— 

(1) Ensure that all employees of the 

Contractor who are responsible for 

performing private security functions under 

this contract comply with any orders, 

directives, and 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. This includes 

ensuring the issuance, maintenance, and 

return of Personal Identity Verification 

credentials in accordance with FAR 52.204– 

19, Personnel Identity Verification of 

Contractor Personnel, and DoD procedures, 

including revocation of any physical and/or 

logistical access (as defined by Homeland 

Security Presidential Directive (HSPD–12)) 

granted to such personnel; 

(ii) Authorizing and accounting for 

weapons to be carried by or available to be 

used by personnel performing private 

security functions; 

(A) All weapons must be registered in the 

Synchronized Predeployment Operational 

Tracker (SPOT) materiel tracking system. 

(B) In addition, all weapons that are 

Government-furnished property must be 

assigned a unique identifier in accordance 

with the clauses at DFARS 252.211–7003, 

Item Identification and Valuation, and 

DFARS 252.245.7001, Tagging, Labeling, and 

Marking of Government-Furnished Property, 

and physically marked in accordance with 

MIL–STD 130 (current version) and DoD 

directives and instructions. The items must 

be registered in the DoD Item Unique 

Identification (IUID) Registry (https:// 

www.bpn.gov/iuid/); 

(iii) Registering and identifying armored 

vehicles, helicopters, and other military 

vehicles operated by Contractors performing 

private security functions; 

(A) All armored vehicles, helicopters, and 

other military vehicles must be registered in 

SPOT. 

(B) In addition, all armored vehicles, 

helicopters, and other military vehicles that 

are Government-furnished property must be 

assigned a unique identifier in accordance 

with the clauses at DFARS 252.211–7003 and 

DFARS 252.245.7001 and physically marked 

in accordance with MIL–STD 130 (current 

version) and DoD directives and instructions. 

The items must be registered in the DoD IUID 

Registry (https://www.bpn.gov/iuid/); and 

(iv) 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 all employees of the 

Contractor who are responsible for personnel 

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 DoDI 3020.50, 

Private Security Contractors Operating in 

Areas of Contingency Operations, Combat 

Operations, or Other Significant Operations, 

at http://www.dtic.mil/whs/directives/corres/ 

pdf; 

(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 commander of a 

combatant command 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 commander of a combatant 

command for personnel performing private 

security functions; and 

(3) Cooperate with any Governmentauthorized investigation by providing access 

to employees performing private security 

functions and relevant information in the 

possession of the Contractor regarding the 

incident concerned. 

(c) 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 personnel who fail to 

comply with or violate applicable 

requirements of this contract. Such action 

may be taken at the Government’s discretion 

without prejudice to its rights under any 

other provision of this contract, including 

termination for default. Required Contractor 

actions include— 

(i) Ensuring the return of personal identity 

verification credentials; 

(ii) Ensuring the return of other equipment 

issued to the employee under the contract; 

and 

(iii) Revocation of any physical and/or 

logistical access granted to such personnel; 

(2) The Contractor’s failure to comply with 

the requirements of this clause will be 

included in appropriate databases of past 

performance and may be considered in any 

responsibility determination or evaluation of 

past performance; 

(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; 

and 

(4) This contract may be terminated for 

default if the Contractor fails to comply with 

the requirements of paragraph (b) of this 

clause or, if directed by the Contracting 

Officer, fails to remove or replace, at its own 

expense, any of its personnel who violate the 

requirements of paragraph (b) of this clause. 

(d) 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 to comply with the 

clause requirements or by a failure of the 

contracting activity to provide required 

oversight. 

(e) Subcontracts. The Contractor shall 

include the substance of this clause, 

including this paragraph (e), in all 

subcontracts that will be performed in areas 

of contingency operations, complex 

contingency operations, or other military 

operations or exercises designated by the 

Combatant Commander. 

(End of clause) 


wreier-aviles on DSKDVH8Z91PROD with RULES2
52138 Federal Register / Vol. 76, No. 161 / Friday, August 19, 2011 / Rules and Regulations 

■ 7. Revise section 252.244–7000 to 

read as follows: 

252.244–7000 Subcontracts for 

Commercial Items and Commercial 

Components (DoD Contracts). 

As prescribed in 244.403, use the 

following clause: 

SUBCONTRACTS FOR COMMERCIAL 

ITEMS AND COMMERCIAL COMPONENTS 

(DOD CONTRACTS) (AUG 2011) 

In addition to the clauses listed in 

paragraph (c) of the Subcontracts for 

Commercial Items clause of this contract 

(Federal Acquisition Regulation 52.244–6), 

the Contractor shall include the terms of the 

following clauses, if applicable, in 

subcontracts for commercial items or 

commercial components, awarded at any tier 

under this contract: 

(a) 252.225–7009 Restriction on 

Acquisition of Certain Articles Containing 

Specialty Metals (JAN 2011) (10 U.S.C. 

2533b). 

(b) 252.225–7039, Contractors Performing 

Private Security Functions (AUG 2011) 

(Section 862 of Pub. L. 110–181, as amended 

by section 853 of Pub. L. 110–417 and 

sections 831 and 832 of Pub. L. 111–383). 

(c) 252.236–7013 Requirement for 

Competition Opportunity for American Steel 

Producers, Fabricators, and Manufacturers 

(JAN 2009) (Pub. L. 110–329, Division E, 

Section 108). 

(d) 252.237–7010 Prohibition on 

Interrogation of Detainees by Contractor 

Personnel (NOV 2010) (Section 1038 of Pub. 

L. 111–84). 

(e) 252.237–7019 Training for Contractor 

Personnel Interacting with Detainees (SEP 

2006) (Section 1092 of Pub. L. 108–375). 

(f) 252.246–7003 Notification of Potential 

Safety Issues (JAN 2007). 

(g) 252.247–7023 Transportation of 

Supplies by Sea (MAY 2002) (10 U.S.C. 

2631). 

(h) 252.247–7024 Notification of 

Transportation of Supplies by Sea (MAR 

2000) (10 U.S.C. 2631). 

(End of clause) 

[FR Doc. 2011–20528 Filed 8–18–11; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 209 and 252 

RIN 0750–AG92 

Defense Federal Acquisition 

Regulation Supplement; Identification 

of Critical Safety Items (DFARS Case 

2010–D022) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD is issuing a final rule 

amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to add a contract clause that 

clearly identifies any items being 

purchased that are critical safety items 

so that the proper risk-based 

surveillance can be performed. 

DATES: Effective Date: August 19, 2011. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Meredith Murphy, 703–602–1302. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD published a proposed rule at 76 

FR 14641 on March 17, 2011, to add a 

contract clause that clearly identifies 

any items being purchased that are 

critical safety items so that the proper 

risk-based surveillance can be 

performed. One public comment was 

received in response to the proposed 

rule. 

II. Discussion and Analysis of the 

Public Comment 

Comment: The respondent noted that 

the DFARS case specifically addresses 

aviation and ship critical safety items, 

but states that protective personal 

equipment, such as body armor and 

helmets, can also have catastrophic 

results if they fail. The respondent 

asked how DoD ensures that contract 

administration activities apply 

increased surveillance procedures in 

these types of contracts. 

Response: The additional risk-based 

surveillance required for aviation and 

ship critical safety items is mandated by 

law (section 802 of the National Defense 

Authorization Act for Fiscal Year 2004 

and section 130 of the National Defense 

Authorization Act for Fiscal Year 2007). 

There is no equivalent statutory 

requirement for protective personal 

equipment, and instituting such a 

requirement is outside the scope of this 

case. However, the respondent’s 

comment has been forwarded to the 

Defense Contract Management Agency 

for future consideration. 

The respondent also asked about the 

process that ensures that contract 

administration activities apply 

increased surveillance procedures when 

aviation and ship critical safety items 

have been identified. The process was 

summarized in the preamble to the 

proposed rule published at 76 FR 14642 

on March 17, 2011. Briefly, the 

combination of the actions of the design 

control activities, joint agency 

instructions (e.g., Management of 

Aviation Critical Safety Items), 

limitations on contracting with sources 

that have not been approved by the 

design control activity, and focus on 

contract administration will ensure the 

proper surveillance for these critical 

items. 

The respondent did not recommend 

changes to the DFARS text or clause, 

and the final rule does not revise the 

DFARS text or clause from that 

published in the proposed rule. 

II. Executive Orders 12866 and 13563 

Executive Orders (E.O.s) 12866 and 

13563 direct agencies to assess all costs 

and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). E.O. 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. This is a significant 

regulatory action and, therefore, was 

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 

The Department of Defense certifies 

that this final rule will not 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. Its 

purpose is internal to the Government 

only by alerting Government qualityassurance activities to existing 

heightened surveillance requirements 

that are imposed by DoD requiring 

activities. The process for identifying an 

item as a critical safety item occurs 

entirely outside the acquisition process, 

as does the process of approving a 

source for production of a critical safety 

item. No comments from small entities 

were received in response to publication 

of the proposed rule. 

V. Paperwork Reduction Act 

The rule does not contain any 

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). 

List of Subjects in 48 CFR Parts 209 and 

252 

Government procurement. 

Ynette R. Shelkin, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, 48 CFR parts 209 and 252 

are amended as follows: 


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