Short title; table of contents

(a)

Short title

This Act may be cited as the

Transparency and Accountability in Security Contracting Act of 2009

. (b)

Table of contents

The table of contents for this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Requirements related to personnel performing private security functions under Federal contracts.

Sec. 3. Requirements for improving coordination between the United States Armed Forces and contractors performing private security functions.

Sec. 4. International framework for security contracting.

Sec. 5. Definitions.

Sec. 6. Effective date.

Requirements related to personnel performing private security functions under Federal contracts

(a)

Accountability Requirements for Personnel Performing Private Security Functions Under Federal Contracts or Subcontracts During Contingency Operations

(1)

Requirement to provide certain information about personnel performing private security functions

Each covered contract shall require the contractor to provide to the contracting officer for the contract, not later than 5 days after award of the contract, the following information regarding private security functions to be performed under the contract: (A)The approximate number of persons to be used to perform the private security functions. (B)A description of the process used to hire such persons, including the method by which and the extent to which background checks regarding such persons are conducted. (C)A description of how such persons are trained to carry out tasks specified under the contract relating to such functions. (D)A description of each category of activity relating to such functions required by the contract. (2)

Updates of information

The information provided under paragraph (1) shall be updated by the contractor during contract performance as necessary. (3)

Safeguarding information

The head of each agency awarding a covered contract shall take such actions as are necessary to protect any information provided under paragraph (1) that is a trade secret, or commercial or financial information, from disclosure to persons outside the Government. This paragraph shall not be construed to prevent access to such information in the course of an investigation into alleged misconduct committed during the performance of a covered contract. (4)

Accounting

Each covered contract shall include the following requirements: (A)Upon award of the contract, the contractor shall provide cost estimates of salary, benefits, insurance, materials, logistics, travel, administrative costs, and other costs of carrying out private security functions under the contract. (B)Before contract closeout (other than closeout of a firm, fixed price contract), the contractor shall provide a report on— (i)the actual costs of carrying out private security functions under the contract, in the same categories as provided under subparagraph (A); and (ii)any equipment or supplies issued or provided by the Federal Government for work under the contract. (5)

Oversight

Before a covered contract is awarded, the head of the agency awarding the contract shall ensure that sufficient resources are available to enable contracting officers of the agency to perform oversight of the performance of the contract, including oversight inspections of facilities and operations. (6)

Waiver authority

(A)

Waiver

The head of the agency awarding a covered contract may waive a requirement of this section with respect to a contract in an emergency or exceptional situation, as determined by the head of the agency. Any such waiver shall be limited to the requirements that are impossible or impracticable to implement because of the emergency or exceptional situation. (B)

Report

In any case in which the head of an agency waives a requirement under this section with respect to a contract, the agency head shall prepare a report that— (i)describes the contract, the waiver, and the emergency or exceptional situation that justified the waiver; and (ii)contains a plan for bringing the contract into compliance with the waived requirements as soon as possible or an explanation of why the waiver needs to be permanent. (C)

Submission of report

The report required by subparagraph (B) shall be submitted, within 30 days after the date of the waiver, to— (i)the Committees on Appropriations, Armed Services, Oversight and Government Reform, and Foreign Affairs of the House of Representatives; and (ii)the Committees on Appropriations, Armed Services, Homeland Security and Governmental Affairs, and Foreign Relations of the Senate. (b)

Security Contracting Database

(1)

Requirement to establish and maintain

No later than 30 days after the date of the enactment of this Act, the Secretary of Defense, in consultation with the Secretary of State, shall establish and maintain a comprehensive security contracting database. (2)

Information to be included

The database required by paragraph (1) shall maintain up-to-date information on the following: (A)Information regarding each active covered contract, including— (i)a brief description of the contract; (ii)the total value of the contract; (iii)an estimate of the number of personnel working under the contract; (iv)whether the contract was awarded competitively; and (v)a designation of whether the work under the contract is to be performed in support of a contingency operation or of an international military force. (B)For contracts awarded in support of or in relation to a contingency operation or an operation of an international military force— (i)the total number and value of contracts awarded since the beginning of the operation; and (ii)the total number of contractor personnel killed or wounded during the performance of such contracts since the beginning of the operation. (C)A list of each individual who, while in performance of a contract awarded by the Federal Government, has been— (i)convicted for violation of United States law; or (ii)subjected to legal or disciplinary action for reliably attested involvement in serious crime (including organized crime, violent crime, sexual offenses, violations of international humanitarian law, bribery, and corruption). (3)

Access

Access to the database established under paragraph (1) shall be provided to Congress and to the Government Accountability Office. The Secretary of Defense shall endeavor to make information within the database publicly available to the extent such information is not classified or sensitive to United States national security interests.

Requirements for improving coordination between the United States Armed Forces and contractors performing private security functions

(a)

Requirements for the Appropriate Use of Security Contractors

(1)

Prohibition

No agency shall award a covered contract for performance of activities that require or involve— (A)direct participation by contractor personnel in hostilities with an enemy combatant or force; or (B)interrogation by contractor personnel of an individual who is a detainee or prisoner in the custody or under the effective control of the United States Government. (2)

Regulation

(A)Not later than 120 days after the date of the enactment of this Act, the Secretary of Defense, the Secretary of State, the Administrator of the United States Agency for International Development, and the Administrator of General Services shall each prescribe regulations to ensure that no covered contract is awarded in violation of paragraph (1). (B)The Federal Acquisition Regulation shall be revised to ensure compliance with paragraph (1). (3)

Special Rule Relating to Language Interpretation

Paragraph (1)(B) shall not be construed to include the performance of work related to language interpretation, so long as the work is strictly limited to language interpretation and occurs under the direct supervision of Federal Government personnel. (b)

Rules for use of force

(1)

Requirement to issue

Not later than 15 days after the initiation of a contingency operation, the Chairman of the Joint Chiefs of Staff shall issue rules regarding the circumstances under which force may be used by contract personnel performing private security functions within the area covered by the contingency operation and the types of force authorized. Each covered contract shall require contract personnel to adhere to the rules for the use of force issued under this subsection. (2)

Notification

The commander of the combatant command whose area of responsibility includes the contingency operation shall communicate the rules for the use of force to contract personnel in accordance with subsection (c). (3)

Exceptions and special rules

As appropriate, the Chairman of the Joint Chiefs of Staff may provide exceptions or special rules in the rules for the use of force for specific contractors. (c)

Hiring, Training, and Equipment Standards Relating to Private Security Contractors

(1)

Regulations

Not later than 30 days after the initiation of a contingency operation, the head of each agency awarding a covered contract shall prescribe in regulations minimum standards (appropriate for the agency) for contract personnel, including minimum hiring, screening, training, and certification standards. The standards may vary based on the duties of personnel, shall, at a minimum— (A)require training of all contractor personnel, in advance of the performance of work under a covered contract, on— (i)applicable rules for the use of force and firearms; (ii)international humanitarian law and international human rights law; (iii)measures against corruption, bribery, and related crimes; (iv)relevant religious, gender, and cultural issues in the host nation; and (v)proper reporting and investigation of incidents involving the use of force or firearms by contractor personnel; (B)prohibit the employment by a contractor performing a covered contract of an individual who— (i)is listed in a database under section 2(b)(2)(C); (ii)has a reliably attested record of involvement in serious crime (including organized crime, violent crime, sexual offenses, violations of international humanitarian law, bribery, and corruption); or (iii)has been dishonorably discharged from armed or security forces; (C)include guidance on identifiability of contractor personnel and vehicles during performance of security contracts; and (D)address security clearance requirements and other issues that the head of the agency determines may lead to security or performance concerns. (2)

Guidance for equipment

The head of each agency awarding a covered contract shall issue guidance (appropriate for the agency) on equipment used for private security functions under covered contracts with the agency, including appropriate uniforms and levels of body armor and equipment armor, and a recommended list of re-armorers and weapons and armor manufacturers for complying with such guidelines. (3)

Consultation with secretary of defense

The head of each agency shall consult with the Secretary of Defense in developing regulations and guidance under this subsection. (d)

Improved Coordination and Communication Between United States Armed Forces and Contractors Performing Private Security Functions

(1)

Establishment of a theater security contract coordinating officer

For each contingency operation with respect to which one or more covered contracts are awarded for performance of work, the Chairman of the Joint Chiefs of Staff shall designate a Theater Security Contract Coordinating Officer. (2)

Responsibilities of theater security contract coordinating officer

The Theater Security Contract Coordinating Officer shall— (A)issue guidance providing for reliable lines of communications between contract personnel and United States Armed Forces; (B)communicate the rules for the use of force, established under subsection (b), to contractors and contract personnel; (C)communicate other critical information, including guidance on Department of Defense responsibilities for force protection of contract personnel and guidance on equipment, to contractors and contract personnel; and (D)as appropriate, communicate up-to-date information about the security environment that may be relevant to contract personnel. (3)

Requirements for contractors relating to the theater security contract coordinating officer

Contractors shall be required to— (A)register with the designated Theater Security Contract Coordinating Officer for the theater in which the covered contract is performed, and to report to the Officer the number of personnel assigned to perform the covered contract; (B)immediately report any incidents in which contract personnel use force or are attacked by hostile forces; (C)immediately report to the Theater Security Contract Coordinating Officer any casualties suffered by covered contract personnel; (D)communicate to the Theater Security Contract Coordinating Officer, in accordance with the guidance issued under paragraph (2)(A), tactical information, such as information on the movement of contractor personnel into and out of a battle space; and (E)communicate to the Theater Security Contract Coordinating Officer relevant information, including intelligence, reports of hostile activity, or information relevant to military planning. (e)

Sense of congress

It is the sense of Congress that the Secretary of Defense and the Secretary of State should work with contractors, industry associations, and nongovernmental organizations to develop a system of independent third-party accreditation of private businesses competing for contracts for private security functions and, further, should ensure that covered contracts are awarded only to contractors who obtain such accreditation.

International framework for security contracting

(a)

International framework on security contracting

The Secretary of State shall work through appropriate existing or new international fora to achieve agreement on an international framework regulating the use of private contractors for security functions and facilitating cooperation among states, international organizations, contractors, and private clients of such contractors on measures to ensure the transparency and legal accountability of security contractors. (b)

Principal issues

The Secretary of State shall work to ensure that the international framework sought under subsection (a) shall address the following areas of concern: (1)Legal obligations of international organizations, contracting states, contractors and their personnel, and private clients of such contractors relating to the use of private contractors for security functions to ensure compliance with and enforcement of international humanitarian law and international human rights law. (2)Standards for the use of force and firearms by contractor personnel. (3)Obligations of contracting states to ensure the appropriate training and equipping of private security contractors, including training on the following: (A)Rules for the use of force and firearms. (B)International humanitarian law and international human rights law. (C)Measures against corruption, bribery, and related crimes. (D)Relevant religious, gender, and cultural issues in the host nation. (E)Identifiability of contractor personnel and vehicles during performance of security contracts. (F)Proper reporting and investigation of complaints relating to the conduct of contractor personnel. (4)Obligations of contracting states to ensure the appropriate vetting of private security contractors, including a mechanism by which contracting states shall ensure that contracting organizations performing security functions do not employ an individual who has a reliably attested record of involvement in serious crime (including organized crime, violent crime, sexual offenses, violations of international humanitarian law, bribery, and corruption) or who has been dishonorably discharged from armed or security forces. (5)Measures to ensure appropriate communication and coordination between private security contractors, armed forces, and other lawful authorities operating in the same area. (6)Procedures for territorial states to register, authorize, and oversee private contractors performing security functions on their territories. (7)Obligations of contracting states, contractors, and other relevant parties relating to prosecution, reparations and other remedies for violations of international humanitarian law or human rights law. (8)Measures to facilitate information-sharing and other cooperation among contracting states, territorial states, and home states of contractor personnel, especially in relation to contractor performance, contractor oversight, and the occurrence and remedy of violations of international humanitarian law or human rights law. (9)Obligations to ensure the rights of private security contractor personnel. (10)A categorization of functions not appropriate for performance by private security contractors, including functions deemed inherently governmental, deemed to constitute direct participation in hostilities, or otherwise impermissible. (c)

Report

Not later than 365 days after the date of the enactment of this Act, the Secretary of State shall submit to Congress a report on the activities carried out to implement this section.

Definitions

In this Act: (1)

Covered contract

The term covered contract means— (A)a prime contract awarded by an agency, if the work to be performed under the contract includes private security functions; (B)a subcontract at any tier under any prime contract awarded by an agency, if the work to be performed under the subcontract includes private security functions; or (C)a task order issued under a task or delivery order contract entered into by an agency, if the work to be performed under the task order includes private security functions. (2)

Private security functions

The term private security functions, with respect to activities carried out under a covered contract in a theater in which the United States is engaged in a contingency operation, means— (A)any activities for which personnel are allowed to carry weapons in the performance of the contract; (B)the performance of— (i)military logistics and maintenance; (ii)interrogation of prisoners; (iii)convoy security; (iv)guarding vital facilities and personnel; (v)tactical security work; (vi)local force training; or (vii)security advice or planning; or (C)any other activity in support of the contingency operation, as determined by the Theater Security Contract Coordinating Officer. (3)

Agency

The term agency has the meaning given the term Executive agency in section 105 of title 5, United States Code. (4)

Contingency operation

The term contingency operation has the meaning given the term section 101(a)(13) of title 10, United States Code. (5)

Contractor

The term contractor means an entity performing a covered contract. (6)

Contract personnel

The term contract personnel means persons assigned by a contractor (including subcontractors at any tier) to perform work under a covered contract.

Effective date

(a)

Applicability

The provisions of this Act shall apply to the following: (1)All covered contracts and all covered contract personnel in which the work under the contract is carried out in a theater in which the United States is currently conducting contingency operations. (2)In the event that the United States begins new contingency operations, all covered contracts and all covered contract personnel in which the work under the contract is carried out in a theater in which the United States is conducting such contingency operations. (b)

Immediate Effectiveness

The provisions of this Act shall enter into effect immediately upon the enactment of this Act. (c)

Implementation

With respect to covered contracts and covered contract personnel discussed in subsection (a)(1), the United States Government shall have 90 days following the date of the enactment of this Act to ensure compliance with the provisions of this Act.