Federal Register / Vol. 77, No. 116 / Friday, June 15, 2012 / Rules and Regulations 35883 

252.227–7038 [Amended] 

■ 52. Section 252.225–7038 is amended 

by removing the clause date ‘‘(DEC 

2007)’’ and adding ‘‘(JUN 2012)’’ in its 

place and in paragraph (l)(2)(ii), by 

removing ‘‘Act’’ and adding ‘‘statute’’ in 

its place. 

252.244–7001 [Amended] 

■ 53. Section 252.244–7001 is amended 

by removing the clause date ‘‘(MAY 

2011)’’ and adding ‘‘(JUN 2012)’’ in its 

place and in paragraph (c)(17), by 

removing ‘‘the Anti-Kickback Act’’ and 

adding ‘‘41 U.S.C. chapter 87, 

Kickbacks’’ in its place. 

■ 54. In appendix I to chapter 2, section 

I–101.4 is revised to read as follows: 

Appendix I to Chapter 2—Policy and 

Procedures for the DOD Pilot MentorProtege Program 

* * * * * 

I–101.4 Severely disabled individual. 

An individual who has a physical or 

mental disability which constitutes a 

substantial handicap to employment and 

which, in accordance with criteria prescribed 

by the Committee for Purchase from People 

Who Are Blind or Severely Disabled 

established by the first section of the Act of 

June 25, 1938 (41 U.S.C. 8502), is of such a 

nature that the individual is otherwise 

prevented from engaging in normal 

competitive employment. 

* * * * * 

[FR Doc. 2012–14259 Filed 6–14–12; 8:45 am] 

BILLING CODE 5001–06–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: Final rule. 

SUMMARY: DoD is adopting as final, with 

changes, an interim rule amending the 

Defense Federal Acquisition Regulation 

Supplement (DFARS) to implement 

those sections of several National 

Defense Authorization Acts which 

establish minimum processes and 

requirements for the selection, 

accountability, training, equipping, and 

conduct of personnel performing private 

security functions under DoD contracts. 

DATES: Effective Date: June 15, 2012. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Meredith Murphy, telephone 571–372– 

6098. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The interim rule implemented 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. DoD published 

the interim rule in the Federal Register 

at 76 FR 52133 on August 19, 2011, to 

implement section 862, as amended, of 

the National Defense Authorization Act 

(NDAA) for Fiscal Year (FY) 2008. 

Section 862 was amended by section 

853 of the NDAA for FY 2009 and 

sections 831 and 832 of the NDAA for 

FY 2011. In addition, the DoD 

Instruction addressing private Security 

Contractors (DoDI 3020.50) was revised 

on August 1, 2011, and the final rule to 

implement section 862 of the NDAA for 

FY 2008, as amended, 32 CFR part 159, 

Private Security Contractors Operating 

in Contingency Operations, was 

published in the Federal Register on 

August 11, 2011 (76 FR 49651). Public 

comments on the final rule at 32 CFR 

part 159 had been solicited by 

publication of an interim rule on July 

17, 2009. 

II. Discussion and Analysis of the 

Public Comments 

Three respondents submitted 

comments on the interim rule. A 

discussion of the comments and the 

changes made to the rule as a result of 

those comments are provided as 

follows: 

A. Summary of Significant Changes 

The following significant changes to 

the DFARS are being made by this rule: 

• The definition of ‘‘private security 

functions’’ in the clause at DFARS 

225.370–3 was revised to conform to the 

DoDI, and limit the definition to the 

specified criteria. 

• The types of active, non-lethal 

countermeasures that must be reported 

when used has been added at DFARS 

225.370–4(c)(1)(iv)(E) and 252.225– 

7039(b)(1)(iv)(E). 

• The types of Governmentauthorized investigations with which 

the contractor is required to cooperate 

are more narrowly described in order to 

conform to the limitations in the statute. 

Changes have been made to DFARS 

225.370–4(c)(3) and the clause at 

DFARS 252.225–7039(b)(3). In addition, 

a definition of ‘‘full cooperation’’ has 

been added to the clause at DFARS 

252.225–7039 to allay concerns about 

waiver of attorney-client privilege. 

• The remedies at DFARS 225.370– 

5(a) have been revised to remove 

paragraph (a)(4), a discussion of the 

right to terminate for default, because 

this right is already covered by the 

contract termination clauses. 

• The applicability of the rule 

(DFARS 225.370–2, 225.370–4(b), and 

225.370–6) and references to the title of 

DoDI 3020.50 at DFARS 225.370–4 and 

252.225–7039(b)(2)(i)) have been 

updated to conform to the revised DoDI 

3020.50. 

B. Analysis of Public Comments 

1. Definition of Private Security 

Functions 

Comment: Two respondents 

commented that the definition of 

‘‘private security functions’’ was (a) too 

broad and (b) inconsistent among the 

DoDI, the DFARS text, and the clause at 

DFARS 252.225–7039, Contractors 

Performing Private Security Functions. 

Response: The definition of ‘‘private 

security functions’’ has been revised to 

limit the definition to the specified 

criteria all inclusive (rather than just 

‘‘including’’ the criteria), consistent 

with the DoDI. The essence of the 

definition cannot be changed 

substantially in the DFARS from that in 

the controlling DoDI. 

2. The Contractor’s Requirement To 

Ensure Compliance of Contractor 

Personnel Performing Private Security 

Functions 

Comment: One respondent stated that 

the requirement for prime contractors to 

ensure that personnel performing 

private security functions comply with 

numerous administrative and reporting 

requirements and are briefed on and 

understand various enumerated laws, 

regulations, orders, directives, 

instructions, and rules related to the 

private security function imposes 

‘‘untenable oversight, policing, and 

enforcement obligations,’’ particularly 

for non-private security function prime 

contractors that subcontract with a 

private security function provider. The 

respondent recommended that the 

prime contractor’s obligation be limited 

to the administrative functions of 

passing the requirements on to the 

private security function provider and 

conducting audits or other 

administrative review functions to 

verify compliance. 

Response: No change has been made 

in the final rule because the law, at 


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35884 Federal Register / Vol. 77, No. 116 / Friday, June 15, 2012 / Rules and Regulations 

section 862(b)(2), as amended, requires 

the contractor, without regard to 

whether it is a direct provider of private 

security functions, to ‘‘ensure’’ that its 

employees and any subcontractors’ 

employees who are responsible for 

performing private security functions 

comply with the regulations prescribed 

under subsection (a) of section 862 

implemented as DoDI 3020.50. In 

addition, the clause at DFARS 252.225– 

7039(b)(1), requires DoD to identify the 

applicable private security functions in 

the contract and make available to the 

contractor the relevant orders, 

directives, and instructions. 

3. Contractors’ Obligation To Cooperate 

With Government investigations 

Comment: One respondent noted that 

DFARS 225.370–4(c)(3) imposes on 

contractors the obligation to cooperate 

with any Government-authorized 

investigation ‘‘by providing access to 

employees performing private security 

functions and relevant information in 

the possession of the contractor,’’ but 

fails to provide any explanation of the 

scope and limitations on this 

requirement. The respondent 

recommended that the final rule define 

the contractor’s obligation to cooperate, 

as in the mandatory disclosure 

provisions of FAR 52.203–13, 

Contractor Code of Business Ethics and 

Conduct, by specifying that such 

cooperation does not require the 

contractor to waive attorney-client 

privilege or the protections afforded by 

the attorney work-product doctrine. 

Response: The final rule has been 

amended to more clearly define the 

scope and limitations of the contractor’s 

obligation to cooperate with 

Government investigations. The revised 

text reflects the limitations on the 

investigations specifically addressed by 

the statute, as amended (see DFARS 

225.370–4(c)(3) and 252.225– 

7039(b)(3)). The limitation on 

information to that in the contractor’s 

possession regarding the incident 

concerned was in the interim rule. 

Additionally, the final rule requires the 

contractor to provide ‘‘full cooperation’’ 

with any Government-authorized 

investigation. In addition, the definition 

of ‘‘full cooperation’’ included in the 

clause reflects the mandatory disclosure 

provisions of FAR 52.203–13, 

Contractor Code of Business Ethics and 

Conduct, with minor edits, as 

recommended by the respondent. 

4. Removal of Personnel for Failure To 

Comply With ‘‘Applicable 

Requirements’’ 

Comment: One respondent stated that 

the interim rule, at DFARS 225.370– 

5(a)(1), grants the Government the very 

broad power to direct a contractor to 

remove any personnel at its own 

expense if the personnel fail to comply 

with or violate applicable requirements. 

The respondent believed that it is 

unclear whether the ‘‘applicable 

requirements’’ are solely limited to 

those spelled out in the interim rule or 

if they include additional requirements 

not identified in the interim rule. 

Response: No change has been made 

in the final rule because the applicable 

requirements for contracts performed 

outside the United Sates have been 

clearly defined in DFARS subpart 225.3 

and paragraph (b) of the clause at 

DFARS 252.225–7039, Contractors 

Performing Private Security Functions. 

As noted in the response to comment 

category B.2 above, relevant orders, 

directives, and instructions must be 

made available to the contractor in a 

single location, including an internet 

Web site (see section 862(a)(3) of the 

statute, as amended), and they must be 

updated as they change, e.g., a change 

in guidance from a geographic 

combatant commander. 

5. Award Fee Reduction or Denial for 

Failure To Comply With Private 

Security Functions Requirements 

Comment: One respondent was 

concerned with the implementation of 

section 862(d), as amended. The 

respondent concluded that the DFARS 

interim rule went beyond the 

requirements of the statute ‘‘by 

requiring the contracting officer to 

include this evaluation requirement in 

an award-fee plan. This subpart then 

provides the contracting officer the 

flexibility to determine whether to 

reduce, deny, or recover all or part of 

award fees.’’ 

Response: No change has been made 

in the final rule in response to this 

comment. FAR 16.401(e)(2) states that 

the determination of the amount of 

award fee and the methodology for 

determining the award fee are unilateral 

decisions made solely at the discretion 

of the Government. In addition, FAR 

16.401(e)(3) requires that all contracts 

providing for award fees must be 

supported by an award-fee plan that 

establishes the procedures for 

evaluating award fee and an award-fee 

board for conducting the award-fee 

evaluation. The use of an award-fee type 

contract provides the Government the 

maximum, subjective flexibility in the 

determination of the factors that will be 

considered, i.e., the award-fee plan, and 

the amount of award fee granted in a 

performance period. The statute 

requires that an additional factor, i.e., 

the failure of a contractor to comply 

with contractual requirements 

pertaining to the performance of private 

security functions, must always be a 

consideration for award fees on any 

award-fee contract calling for 

performance in the applicable areas. 

6. Applicability 

Comments: One respondent submitted 

two comments on the applicability of 

the interim rule. First, the respondent 

stated that the statute limits the 

regulations to ‘‘combat operations or 

other significant military operations’’ 

and the interim rule goes beyond that. 

Second, the respondent noted that the 

interim rule requires DoD 

subcontractors for commercial items 

and commercial components to comply 

with requirements imposed on private 

security providers and recommended 

that the applicability of the DFARS 

coverage be modified to require 

coverage only for contracts and 

subcontracts that provide security as a 

primary function. 

Response: The applicability of the 

DFARS final rule has been revised, at 

DFARS 225.370–2, to encompass the 

categories as specified in the DoDI, 

except that ‘‘combat operations’’ are 

identified separately from ‘‘contingency 

operations,’’ as specified in the statute. 

‘‘Complex contingency operations’’ are 

now identified as ‘‘humanitarian or 

peacekeeping operations,’’ which is a 

term defined in statute and FAR 2.101. 

The Secretary of Defense has not 

formally designated Iraq or Afghanistan 

as ‘‘combat operations,’’ yet these areas 

are clearly intended to be covered by the 

regulations for private security 

functions. Therefore, ‘‘contingency 

operations’’ are covered. Whereas 

Governmentwide implementation will 

be restricted to combat operations and 

other significant military operations, the 

DoDI requires somewhat broader 

application for DoD contracts. 

Congress did not contemplate limiting 

applicability of the regulations to only 

those contractors providing primarily 

private security functions. To do so 

would have resulted in anomalies such 

as sanctions for a private security 

contractor whose employee wounded or 

killed a civilian while not sanctioning a 

contractor providing construction goods 

or foodstuffs whose personnel providing 

security wounded or killed a civilian. 

These requirements are applicable only 

when the contract or subcontract 

performance is outside the United 

States. 

7. Reporting Requirements 

Comment: One respondent noted a 

number of perceived shortcomings in 

the reporting requirements at DFARS 


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Federal Register / Vol. 77, No. 116 / Friday, June 15, 2012 / Rules and Regulations 35885 

225.370–4(c)(1)(iv). Specifically, the 

respondent was concerned that the 

requirement to report any property 

destruction could overwhelm industry 

and Government employees alike with 

reports of incidental and de minimis 

damage to property. The respondent 

was concerned that the requirement to 

report incidents in which a firearm is 

discharged would include planned 

firearm discharges occurring during 

training and maintenance. In addition, 

the respondent requested that the 

DFARS include examples of active, nonlethal countermeasures. 

Response: The statute requires 

contractors, at section 862(b)(2)(A)(iv), 

to report incidents in which (1) A 

weapon is discharged by personnel 

performing private security functions; 

(2) personnel performing private 

security functions are killed or injured; 

or (3) persons are killed or injured, or 

property is destroyed, as a result of 

conduct by contractor personnel. The 

second comment resulted in the 

addition of a listing of active, non-lethal 

countermeasures in both the DFARS 

text see DFARS 225.370–4(c)(1)(iv)(E) 

and the clause at 252.225–7039. 

8. Statutory Remedies Do Not Include 

Contract Termination 

Comment: One respondent stated that 

the legislation does not allow the 

Government to terminate a contract for 

default in the case of noncompliance. 

Response: The Government has the 

right to terminate a contract for default 

pursuant to one of the termination 

clauses at FAR 52.249–6 (costreimbursement), –8 (fixed-price supply 

and service), –10 (construction), or –11 

(personal services) that is included in 

every contract, as applicable. DoD does 

not acquire new or additional 

termination-for-default rights by 

including such coverage in the clause at 

DFARS 252.225–7039. Therefore, the 

final rule has removed the termination 

language from DFARS 225.370–5 and 

the clause at DFARS 252.225–7039. 

While the statute does not specifically 

list termination of a contract for default 

when a contractor’s failure to comply is 

severe, prolonged, or repeated, it does 

provide that the contractor must be 

referred to the agency suspension or 

debarment official and that the failure 

may be a cause for suspension or 

debarment of the contractor. Once a 

contractor appears on the Excluded 

Parties List System (FAR 9.404), all 

Government agencies are prohibited 

from awarding contracts or consenting 

to subcontracts with the contractor, 

unless there is an agency head 

determination to do so (FAR 9.405(a)). 

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 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 

A final regulatory flexibility analysis 

has been prepared consistent with the 

Regulatory Flexibility Act, 5 U.S.C. 601, 

et seq., and is summarized as follows: 

DoD is adopting as final, with 

changes, 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 final rule has been 

updated to conform with the 

governmentwide regulation at 32 CFR 

part 159, entitled ‘‘Private Security 

Contractors Operating in Contingency 

Operations.’’ In addition, this final rule 

implements DoDI 3020.50, ‘‘Private 

Security Contractors (PSCs) Operating 

in Contingency Operations, 

Humanitarian or Peace Operations, or 

Other Military Operations or Exercises,’’ 

which provides procedures for 

personnel performing private security 

functions for DoD. This final rule 

impacts only private security 

contractors performing outside the 

United States in areas of combat 

operations and other significant military 

operations designated by the Secretary 

of Defense, contingency operations, or 

other military operations designated by 

the combatant commanders. DoD does 

not expect this final 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 it impacts only private security 

contractors performing outside the 

United States. 

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 final rule 

provides this consistency and clarity 

and, in that sense, serves to relieve the 

burdens on small businesses. 

No comments were received from the 

Chief Counsel for Advocacy of the Small 

Business Administration in response to 

the rule. 

The rule does not duplicate, overlap, 

or conflict with any other Federal rules. 

No alternatives have been identified that 

accomplish the stated objectives of the 

applicable statutes. 

V. Paperwork Reduction Act 

This 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 rule affects the certification and 

information collection requirements in 

the provisions at DFARS 225.7402–3, 

currently approved under OMB Control 

Number 0704–0460, titled 

‘‘Synchronized Predeployment and 

Operational Tracker (SPOT) System,’’ 

effective through March 31, 2013. No 

impact is anticipated, however, because 

DoD contractors operating in areas of 

combat operations, contingency 

operations, or other military operations 

or exercises are currently required to 

use SPOT for registering personnel and 

weapons, as well as armored vehicles, 

helicopters, and other military vehicles 

operated by personnel performing 

private security functions, and to report 

the incidents addressed in the clause at 

DFARS 252.225–7039. 

List of Subjects in 48 CFR Parts 216, 

225, and 252 

Foreign currencies, Government 

procurement, Reporting and 

recordkeeping requirements. 

Ynette R. Shelkin, 

Editor, Defense Acquisition Regulations 

System. 

Accordingly, the interim rule 

amending 48 CFR parts 216, 225, and 

252, which was published at 76 FR 

52133 on August 19, 2011, is adopted as 

a final rule with the following changes: 

■ 1. The authority citation for 48 CFR 

parts 225 and 252 continues to read as 

follows: 


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35886 Federal Register / Vol. 77, No. 116 / Friday, June 15, 2012 / Rules and Regulations 

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

chapter 1. 

PART 225—FOREIGN ACQUISITION 

■ 2. Sections 225.370–2 and 225.370–3 

are revised to read as follows: 

225.370–2 Applicability. 

This section applies to acquisitions 

for supplies and services that require 

the performance of private security 

functions outside the United States in 

areas of— 

(a) Combat and other significant 

military operations designated by the 

Secretary of Defense; 

(b) Contingency operations (see FAR 

2.101); 

(c) Humanitarian or peacekeeping 

operations; or 

(d) Other military operations or 

exercises designated by the combatant 

commander. 

225.370–3 Definitions. 

As used in this section— 

Full cooperation and private security 

functions are defined in the clause at 

252.225–7039, Contractors Performing 

Private Security Functions. 

■ 3. Section 225.370–4 is amended— 

■ a. By revising paragraphs (a) and (b); 

■ b. In paragraph (c)(1) introductory text 

by removing ‘‘Ensure that all 

employees’’ and adding ‘‘Ensure that the 

contractor and all employees’’ in its 

place; 

■ c. By revising paragraph (c)(1)(iv)(E); 

■ d. In paragraph (c)(2) introductory text 

by removing ‘‘Ensure that all 

employees’’ and adding ‘‘Ensure that the 

contractor and all employees’’ in its 

place; and 

■ e. By revising paragraph (c)(3). 

The revisions read as follows: 

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 (PSCs) Operating in 

Contingency Operations, Humanitarian 

or Peace Operations, or Other Military 

Operations or Exercises, 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 outside the United 

States in areas of combat and other 

significant military operations 

designated by the Secretary of Defense, 

contingency operations, humanitarian 

or peacekeeping operations, or other 

military operations or exercises 

designated by the combatant 

commander, whether the contract is for 

the performance of private security 

functions or other supplies or services. 

(c) * * * 

(1) * * * 

(iv) * * * 

(E) Active, non-lethal 

countermeasures (other than the 

discharge of a weapon, including laser 

optical distracters, acoustic hailing 

devices, electromuscular TASER guns, 

blunt-trauma devices like rubber balls 

and sponge grenades, and a variety of 

other riot control agents and delivery 

systems) are employed by personnel 

performing private security functions in 

response to a perceived immediate 

threat; 

* * * * * 

(3) Provide full cooperation with any 

Government-authorized investigation 

into incidents reported pursuant to 

paragraph (b)(1)(iv) of the clause at 

252.225–7039, Contractors Performing 

Private Security Functions, and 

incidents of alleged misconduct by 

personnel performing private security 

functions by providing access to 

employees performing private security 

functions and relevant information in 

the possession of the contractor. 

225.370–5 [Amended] 

■ 4. Section 225.370–5 is amended— 

■ a. In paragraph (a)(2), by adding ‘‘and’’ 

at the end of the sentence; 

■ b. In paragraph (a)(3), by removing 

‘‘paid for such period; and’’ and adding 

‘‘paid for such period (see 216.405–2– 

71).’’ in its place; 

■ c. By removing paragraph (a)(4); and 

■ d. In paragraph (b), by removing 

‘‘significant, or repeated’’ and adding 

‘‘significant, severe, prolonged, or 

repeated’’ in its place. 

■ 5. Section 225.370–6 is revised to read 

as follows: 

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 outside the 

United States in areas of— 

(a) Combat and other significant 

military operations designated by the 

Secretary of Defense; 

(b) Contingency operations (see FAR 

2.101); 

(c) Humanitarian or peacekeeping 

operations; or 

(d) Other military operations or 

exercises designated by the combatant 

commander. 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 6. Section 252.225–7039 is 

amended— 

■ a. By removing the clause date and 

adding ‘‘(JUN 2012)’’ in its place; 

■ b. By revising paragraph (a); 

■ c. In introductory sentence (b)(1), by 

removing ‘‘Ensure that all employees’’ 

and adding ‘‘Ensure that the Contractor 

and all employees’’ in its place; 

■ d. In paragraph (b)(1)(i), by removing 

‘‘Personnel Identity Verification of 

Contractor Personnel’’ and adding 

‘‘Personal Identity Verification of 

Contractor Personnel’’ in its place; 

■ e. By revising paragraph (b)(1)(iv)(E); 

■ f. In introductory sentence (b)(2), by 

removing ‘‘Ensure that all employees’’ 

and adding ‘‘Ensure that the Contractor 

and all employees’’ in its place; 

■ g. In paragraph (b)(2)(i), by removing 

‘‘Combat Operations, or Other 

Significant Military Operations’’ and 

adding ‘‘Humanitarian or Peace 

Operations, or Other Military 

Operations or Exercises’’ in its place; 

■ h. By revising paragraph (b)(3); 

■ i. In paragraph (c)(2), by adding ‘‘and’’ 

at the end of the sentence; 

■ j. In paragraph (c)(3), by removing 

‘‘paid for such period; and’’ and adding 

‘‘paid for such period.’’ in its place; 

■ k. By revising paragraph (c)(4); and 

■ l. By revising paragraph (e). 

The revisions read as follows: 

252.225–7039 Contractors Performing 

Private Security Functions. 

* * * * * 

(a) Definitions. 

Full cooperation— 

(i) 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; 

(ii) Does not foreclose any Contractor 

rights arising in law, the FAR, the 

DFARS, or the terms of the contract. It 

does not require— 

(A) The Contractor to waive its 

attorney-client privilege or the 

protections afforded by the attorney 

work product doctrine; or 

(B) 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 

(C) Does not restrict the Contractor 

from— 


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Federal Register / Vol. 77, No. 116 / Friday, June 15, 2012 / Rules and Regulations 35887 

(1) Conducting an internal 

investigation; or 

(2) 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: 

(i) Guarding of personnel, facilities, 

designated sites, or property of a Federal 

agency, the contractor or subcontractor, 

or a third party. 

(ii) Any other activity for which 

personnel are required to carry weapons 

in the performance of their duties. 

(b) * * * 

(1) * * * 

(iv) * * * 

(E) Active, non-lethal 

countermeasures (other than the 

discharge of a weapon, including laser 

optical distracters, acoustic hailing 

devices, electromuscular TASER guns, 

blunt-trauma devices like rubber balls 

and sponge grenades, and a variety of 

other riot control agents and delivery 

systems) are employed by personnel 

performing private security functions in 

response to a perceived immediate 

threat; 

* * * * * 

(3) Provide full cooperation with any 

Government-authorized investigation 

into incidents reported pursuant to 

paragraph (b)(1)(iv) of this clause and 

incidents of alleged misconduct by 

personnel performing private security 

functions by providing access to 

employees performing private security 

functions and relevant information in 

the possession of the Contractor 

regarding the incident concerned. 

(c) * * * 

(4) If the performance failures are 

significant, severe, prolonged, or 

repeated, the contracting officer shall 

refer the contractor to the appropriate 

suspension and debarment official. 

* * * * * 

(e) Subcontracts. The Contractor shall 

include the substance of this clause, 

including this paragraph (e), in all 

subcontracts that will be performed 

outside the United States in areas of 

combat and other significant military 

operations designated by the Secretary 

of Defense, contingency operations, 

humanitarian or peacekeeping 

operations, or other military operations 

or exercises designated by the 

Combatant Commander. 

[FR Doc. 2012–14304 Filed 6–14–12; 8:45 am] 

BILLING CODE 5001–06–P 


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