FAR Council Issues Proposed Rule on Private Security Contractors Supporting US Government Programs Abroad

On July 23, 2012, the Federal Acquisition Regulation (FAR) Council issued a proposed rule, which would amend the FAR to implement Government-wide requirements in National Defense Authorization Acts (NDAAs) that establish minimum processes and requirements for the selection, accountability, training, equipping, and conduct of personnel performing private security functions outside the United States. The rule sets forth contract language and FAR coverage similar to an existing DFARS provision that establishes standards and requirements for DoD contractors performing private security services in battle space and contingency operations areas. The proposed rule will not supersede the DFARS Rule, nor address non-DOD contractors' operations in contingency operations that have not been designated for enhanced PSC coordination, but DoD ultimately plans to align the DFARS rule with the final FAR rule to eliminate any overlap.

By way of background, Section 862 of the NDAA for FY 2008, entitled "Contractors Performing Private Security Functions in Areas of Combat Operations," as amended by section 853 of the NDAA for FY 2009, and sections 831 and 832 of the NDAA for FY 2012, requires: (1) the establishment of Government-wide policies for the selection, accountability, training, equipping, and conduct of personnel performing private security functions outside the United States, and (2) FAR coverage implementing the Government-wide policies, as well the Government-wide policies specified in section 862, as amended.

On August 11, 2011, the DoD issued a final rule, codified at 32 CFR part 159 to meet the first requirement of section 862 of the NDAA for FY 2008, as amended. Part 159 establishes policy and provides procedures for the regulation of and conduct of personnel performing private security functions for DoD private security companies (PSCs), PSC personnel performing private security functions during contingency operations outside the United States on behalf of other agencies, and U.S. Government-funded PSCs and PSC personnel performing private security functions in an area of designated combat operation or an area of agreed other significant military operations. On August 19, 2011, the DoD issued an interim rule to meet the second requirement of section 862 of the NDAA for FY 2008, as amended, but applicable to DoD contracts only.

This proposed rule is focused solely on meeting the second requirement of section 862 of the NDAA for FY 2008, as amended, to develop regulations applicable to all U.S. Government contracts for...

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