[Federal Register Volume 81, Number 190 (Friday, September 30, 2016)]
[Rules and Regulations]
[Pages 67776-67778]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-23203]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 25 and 52

[FAC 2005-91; FAR Case 2014-018; Item IX; Docket No. 2014-0018, 
Sequence No. 1]
RIN 9000-AN07


Federal Acquisition Regulation: Contractors Performing Private 
Security Functions

AGENCY: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Final rule.

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SUMMARY: DoD, GSA, and NASA are issuing a final rule amending the 
Federal Acquisition Regulation (FAR) to remove the DoD-unique 
requirements for contractors performing private security functions 
outside the United States and provide a definition of ``full 
cooperation'' within the associated clause.

DATES: Effective: October 31, 2016.

FOR FURTHER INFORMATION CONTACT: Mr. Michael O. Jackson, Procurement 
Analyst, at 202-208-4949, for clarification of content. For information 
pertaining to status or publication schedules, contact the Regulatory 
Secretariat at 202-501-4755. Please cite FAC 2005-91, FAR Case 2014-
018.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD, GSA, and NASA published a proposed rule in the Federal 
Register at 80 FR 30202 on May 27, 2015, to implement section 862 of 
the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2008 
(Pub. L. 110-181) (as amended by other NDAAs, see 10 U.S.C. 2302 Note). 
This rule amends FAR 25.302, Contractors performing private security 
functions outside the United States, and the associated clause at 
52.225-26 to remove the DoD-unique requirements, which were 
incorporated in the Defense Federal Acquisition Regulation Supplement 
(DFARS) on June 30, 2016 (81 FR 42559). This rule also adds the 
definition of ``full cooperation'' to FAR clause 52.225-26 in order to 
affirm that the contract clause does not foreclose any contractor 
rights arising in law, the FAR, or the terms of the contract when 
cooperating with any Government-authorized investigation into incidents 
reported pursuant to the clause.
    One respondent submitted comments on the proposed rule.

II. Discussion and Analysis

    The Civilian Agency Acquisition Council and the Defense Acquisition 
Regulations Council (the Councils) reviewed the public comment in the 
development of the final rule.

A. Summary of Significant Changes

    There were no changes made to the rule as a result of the one 
comment received. There were no comments on the Regulatory Flexibility 
Analysis.

B. Analysis of Public Comments

    A discussion of the comment follows:
    Employing quasi-military armed forces:
    Comment: The respondent did not comment on any of the proposed 
changes in the proposed rule. The respondent commented on the alleged 
employment of mercenaries by contractors performing private security 
functions overseas and further stated that this is prohibited as 
codified at 5 U.S.C. 3181. The respondent recommended a change to the 
FAR to make it clear that the U.S. Government will not employ 
mercenaries.
    Response: The respondent's comments are not within the scope of 
this rule.

III. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
This is not a significant regulatory action and, therefore, was not 
subject to review under Section 6(b) of E.O. 12866, Regulatory Planning 
and Review, dated September 30, 1993. This rule is not a major rule 
under 5 U.S.C. 804.

IV. Regulatory Flexibility Act

    DoD, GSA, and NASA have prepared a Final Regulatory Flexibility 
Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5 
U.S.C. 601, et seq. The FRFA is summarized as follows:

    The objective of this rule is to amend FAR 25.302, Contractors 
performing private security functions outside the United States, and 
the associated clause at 52.225-26 to remove the DoD-unique 
requirements, which will be incorporated in the Defense Federal 
Acquisition Regulation Supplement (DFARS). The rule also adds a 
definition of ``full cooperation'' to FAR clause 52.225-26 in order 
to affirm that the contract clause does not foreclose any contractor 
rights arising in law, the FAR, or the terms of the contract when 
cooperating with any Government-authorized investigation into 
incidents reported pursuant to the clause.
    No comments were received from the public relative to the 
initial regulatory flexibility analysis.
    DoD, GSA, and NASA do 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. Based on data available in the Federal 
Procurement Data System (FPDS), DoD awarded 403 contracts in FY 2013 
in support of a designated contingency operation outside of the 
United States, of which 63 contracts (15.6 percent) were awarded to 
small businesses. Therefore, it is estimated that this rule will 
apply to approximately 63 small businesses.
    This rule does not create any new reporting, recordkeeping, or 
other compliance requirements.
    There are no known significant alternatives to the rule. The 
impact of this rule on small business is not expected to be 
significant because it is removing DoD-unique requirements from the 
FAR, to be incorporated in the DFARS.

    Interested parties may obtain a copy of the FRFA from the 
Regulatory Secretariat. The Regulatory Secretariat has submitted a copy 
of the FRFA to the

[[Page 67777]]

Chief Counsel for Advocacy of the Small Business Administration.

V. Paperwork Reduction Act

    This rule does not affect the information collection requirements 
in FAR clause 52.225-26, currently approved under OMB Control Number 
9000-0184, titled: Contractors Performing Private Security Functions 
Outside the United States, in accordance with the Paperwork Reduction 
Act (44 U.S.C. chapter 35). The estimated total annual public hour and 
cost burden in OMB control number 9000-0184 was calculated based on 
data for the contracts and subcontracts of non-DoD agencies, because 
DoD's information collection was previously approved under OMB control 
number 0704-0460. Therefore, removing the DoD-unique requirements from 
the FAR does not impact the approved estimates for OMB clearance 9000-
0184.

List of Subject in 48 CFR Parts 25 and 52

    Government procurement.

    Dated: September 19, 2016.
William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of 
Acquisition Policy, Office of Government-wide Policy.

    Therefore, DoD, GSA, and NASA amend 48 CFR parts 25 and 52 as set 
forth below:

0
1. The authority citation for 48 CFR parts 25 and 52 continues to read 
as follows:

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 
U.S.C. 20113.

PART 25--FOREIGN ACQUISITION


25.302-2   [Amended]

0
2. Amend section 25.302-2 by removing from the definition ``Other 
significant military operations'' the phrase ``(see 25.302-3(b)(2)).'' 
and adding ``(see 25.302-3(a)(2)).'' in its place.

0
3. Amend section 25.302-3 by--
0
a. Revising paragraph (a);
0
b. Removing paragraph (b); and
0
c. Redesignating paragraphs (c) through (e) as paragraphs (b) through 
(d), respectively.
    The revision reads as follows:


25.302-3  Applicability.

    (a) This section applies to contracts that require performance 
outside the United States--
    (1) In an area of combat operations as designated by the Secretary 
of Defense; or
    (2) In an area of other significant military operations as 
designated by the Secretary of Defense, and only upon agreement of the 
Secretary of Defense and the Secretary of State.
* * * * *


25.302-4   [Amended]

0
4. Amend section 25.302-4 by--
0
a. Removing from paragraph (a)(1) ``(PSCs) Operating in Contingency 
Operations, Combat Operations, or Other Significant Military 
Operations'' and adding ``Operating in Contingency Operations'' in its 
place; and
0
b. Removing from paragraph (a)(2) ``to cooperate'' and adding ``to 
fully cooperate'' in its place.

0
5. Amend section 25.302-6 by revising paragraph (a) to read as follows:


25.302-6  Contract clause.

    (a) Use the clause at 52.225-26, Contractors Performing Private 
Security Functions Outside the United States, in solicitations and 
contracts for performance outside the United States in an area of--
    (1) Combat operations, as designated by the Secretary of Defense; 
or
    (2) Other significant military operations, as designated by the 
Secretary of Defense and only upon agreement of the Secretary of 
Defense and the Secretary of State.
* * * * *

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
6. Amend section 52.212-5 by--
0
a. Revising the date of the clause, paragraphs (b)(51) and 
(e)(1)(xviii); and
0
b. Amending Alternate II by--
0
 1. Revising the date of Alternate II;
0
2. Redesignating paragraphs (e)(1)(ii)(O) through (R) as paragraphs 
(e)(1)(ii)(P) through (S), respectively; and
0
 3. Adding a new paragraph (e)(1)(ii)(T).
    The revisions read as follows:


52.212-5  Contract Terms and Conditions Required To Implement Statutes 
or Executive Orders--Commercial Items.

* * * * *

Contract Terms and Conditions Required To Implement Statutes or 
Executive Orders--Commercial Items (Oct 2016)

* * * * *
    (b) * * *
    _ (51) 52.225-26, Contractors Performing Private Security 
Functions Outside the United States (Oct 2016) (Section 862, as 
amended, of the National Defense Authorization Act for Fiscal Year 
2008; 10 U.S.C. 2302 Note).
* * * * *
    (e)(1) * * *
    (xviii) 52.225-26, Contractors Performing Private Security 
Functions Outside the United States (Oct 2016) (Section 862, as 
amended, of the National Defense Authorization Act for Fiscal Year 
2008; 10 U.S.C. 2302 Note).
* * * * *
    Alternate II (Oct 2016). * * *
* * * * *
    (e)(1) * * *
    (ii) * * *
    (T) 52.225-26, Contractors Performing Private Security Functions 
Outside the United States (Oct 2016) (Section 862, as amended, of 
the National Defense Authorization Act for Fiscal Year 2008; 10 
U.S.C. 2302 Note).
* * * * *

0
7. Amend section 52.213-4 by revising the date of the clause and 
paragraph (a)(2)(viii) to read as follows:


52.213-4   Terms and Conditions--Simplified Acquisitions (Other Than 
Commercial Items).

* * * * *

Terms and Conditions--Simplified Acquisitions (Other Than Commercial 
Items) (Oct 2016)

* * * * *
    (a) * * *
    (2) * * *
    (viii) 52.244-6, Subcontracts for Commercial Items (Oct 2016).
* * * * *

0
8. Amend section 52.225-26 by--
0
a. Revising the introductory text and the date of the clause;
0
b. Revising the introductory text of paragraph (a); and adding in 
alphabetical order, the definitions ``Area of combat operations'', 
``Full cooperation'', and ``Other significant military operations'';
0
c. Revising paragraph (b);
0
d. Removing from paragraph (c)(2)(i) ``(PSCs) Operating in Contingency 
Operations, Combat Operations, or Other Significant Military 
Operations'' and adding ``Operating in Contingency Operations'' in its 
place;
0
e. Removing from paragraph (c)(3) ``Cooperate'' and adding ``Provide 
full cooperation'' in its place; and
0
f. Revising paragraph (f).
    The revisions read as follows:


52.225-26  Contractors Performing Private Security Functions Outside 
the United States.

    As prescribed in 25.302-6, insert the following clause:

Contractors Performing Private Security Functions Outside the United 
States (Oct 2016)

    (a) Definitions. As used in this clause--
    Area of combat operations means an area of operations designated 
as such by the Secretary of Defense when enhanced coordination of 
contractors performing private security functions working for 
Government agencies is required.

[[Page 67778]]

    Full cooperation--
    (1) Means disclosure to the Government of the information 
sufficient to identify the nature and extent of the incident and the 
individuals responsible for the conduct. It includes providing 
timely and complete responses to Government auditors' and 
investigators' requests for documents and access to employees with 
information;
    (2) Does not foreclose any Contractor rights arising in law, the 
FAR, or the terms of the contract. It does not require--
    (i) The Contractor to waive its attorney-client privilege or the 
protections afforded by the attorney work product doctrine; or
    (ii) Any officer, director, owner, or employee of the 
Contractor, including a sole proprietor, to waive his or her 
attorney-client privilege or Fifth Amendment rights; and
    (3) Does not restrict the Contractor from--
    (i) Conducting an internal investigation; or
    (ii) Defending a proceeding or dispute arising under the 
contract or related to a potential or disclosed violation.
    Other significant military operations means activities, other 
than combat operations, as part of a contingency operation outside 
the United States that is carried out by United States Armed Forces 
in an uncontrolled or unpredictable high-threat environment where 
personnel performing security functions may be called upon to use 
deadly force.
* * * * *
    (b) Applicability. If this contract is performed both in a 
designated area and in an area that is not designated, the clause 
only applies to performance in the following designated areas--
    (1) Combat operations, as designated by the Secretary of 
Defense; or
    (2) Other significant military operations, as designated by the 
Secretary of Defense, and only upon agreement of the Secretary of 
Defense and the Secretary of State.
* * * * *
    (f) Subcontracts. The Contractor shall include the substance of 
this clause, including this paragraph (f), in all subcontracts that 
will be performed outside the United States in areas of--
    (1) Combat operations, as designated by the Secretary of 
Defense; or
    (2) Other significant military operations, upon agreement of the 
Secretaries of Defense and State that the clause applies in that 
area.
* * * * *

0
9. Amend section 52.244-6 by revising the date of the clause and 
paragraph (c)(1)(xv) to read as follows:


52.244-6  Subcontracts for Commercial Items.

* * * * *

Subcontracts for Commercial Items (Oct 2016)

* * * * *
    (c) * * *
    (1) * * *
    (xv) 52.225-26, Contractors Performing Private Security 
Functions Outside the United States (Oct 2016) (Section 862, as 
amended, of the National Defense Authorization Act for Fiscal Year 
2008; 10 U.S.C. 2302 Note).

[FR Doc. 2016-23203 Filed 9-29-16; 8:45 am]
 BILLING CODE 6820-EP-P