THE BLOG

Don't Ask, Don't Tell, Don't Oversee, Don't Account

09/26/2010 12:48 pm ET | Updated May 25, 2011

When, on Sep. 21, Senate Democrats failed, due to Republican opposition, to get the required 60 votes needed to put a referendum on the military's "don't ask, don't tell" policy to a vote they did more than fail to repeal the policy which prevents gays and lesbians from serving openly in the military. Both parties screwed up the chance to get more effective accountability and oversight on private military and security contractors.

Included in the FY 2011 National Defense Authorization bill were two very relevant, to the PMSC industry, provisions. They were pilot program on best value for contracts for private security functions, and standards and certification for private security contractors

These are no-brainer ideas that anyone with even the most cursory understanding of federal contracting should want to see adopted. The idea that when evaluating a contractor's bid one should look at factors other than the bottom line financial cost is, as Sherlock Holmes said, elementary. Things like a contractor's past record, reputation and experience are, of course, just a few of the other criterion one would examine. Anyone who has ever hired a contractor to work on their home understands this. Groups like the Commission on Wartime Contracting have also called for this

And, anyone who has ever followed the news about private security contractors over the years understands that the need for independent certification that PSC adhere to proscribed standards is vital.

To its credit, IPOA a Washington, DC-based U.S. trade association for private military and security contractors supported both measures. See here and here for detail.

Below are the two sections that deserve to be passed. Hopefully when the Defense Authorization bill finally does get passed these measures will still be included.

H.R.5136
National Defense Authorization Act for Fiscal Year 2011 (Reported in House - RH)

SEC. 323. PILOT PROGRAM ON BEST VALUE FOR CONTRACTS FOR PRIVATE SECURITY FUNCTIONS.

(a) Pilot Program Authorized- Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall establish a pilot program under which the Secretary shall implement a best value procurement standard in entering into contracts for the provision of private security functions in Afghanistan and Iraq. In entering into a covered contract under the pilot program, in addition to taking into consideration the cost of the contract, the Secretary shall take into consideration each of the following:

(1) Past performance.

(2) Quality.

(3) Delivery.

(4) Management expertise.

(5) Technical approach.

(6) Experience of key personnel.

(7) Management structure.

(8) Risk.

(9) Such other matters as the Secretary determines are appropriate.

(b) Justification- A covered contract under the pilot program may not be awarded unless the contracting officer for the contract justifies in writing the reason for the award of the contract.

(c) Annual Report- Not later than January 15 of each year the pilot program under this section is carried out, the Secretary of Defense shall submit to the congressional defense committees an unclassified report containing each of the following:

(1) A list of any covered contract awarded for private security functions in Afghanistan and Iraq under the pilot program.

(2) A description of the matters that the Secretary of Defense took into consideration, in addition to cost, in awarding each such contract.

(3) Any additional information or recommendations the Secretary considers appropriate to include with respect to the pilot program, the contracts awarded under the pilot program, or the considerations for evaluating such contracts.

(d) Termination of Program- The authority of the Secretary of Defense to carry out a pilot program under this section terminates on September 30, 2013. The termination of the authority shall not affect the validity of contracts that are awarded or modified during the period of the pilot program, without regard to whether the contracts are performed during the period.

(e) Discretionary Implementation After September 30, 2013- After September 30, 2013, implementation of a best value procurement standard in entering into contracts for the provision of private security functions in Afghanistan and Iraq shall be at the discretion of the Secretary of Defense.

(f) Definitions- In this section:

(1) The term `best value' means providing the best overall benefit to the Government in accordance with the tradeoff process described in section 15.101-1 of title
48 of the Code of Federal Regulations.

(2) The term `covered contract' means--

(A) a contract of the Department of Defense for the performance of services; or

(B) a task order or delivery order issued under such a contract.

(3) The term `private security functions' means guarding, by a contractor under a covered contract, of personnel, facilities, or property of a Federal agency, the contractor, a subcontractor of a contractor, or a third party.

SEC. 324. STANDARDS AND CERTIFICATION FOR PRIVATE SECURITY CONTRACTORS.

(a) Third-party Certification Policy Guidance- Not later than 270 days after the date of the enactment of this Act, the Secretary of Defense shall issue policy guidance requiring, as a condition for award of a covered contract for the provision of private security functions, that each contractor receive certification from a third party that the contractor adheres to specified operational and business practice standards. The guidance
shall--

(1) establish criteria for defining standard practices for the performance of private security functions, which shall reflect input from industry representatives as well as the Inspector General of the Department of Defense;

(2) establish criteria for weapons training programs for contractors performing private security functions, including minimum requirements for weapons training programs of instruction and minimum qualifications for instructors for such programs; and

(3) identify organizations that can carry out the certifications.

(b) Regulations Required- Not later than 270 days after the date of the enactment of this Act, the Secretary of Defense shall revise the Department of Defense supplement to the Federal Acquisition Regulation to carry out the requirements of this section and the guidance issued under this section.

(c) Definitions- In this section:

(1) The term `covered contract' means--

(A) a contract of the Department of Defense for the performance of services;

(B) a subcontract at any tier under such contract;

(C) a task order or delivery order issued under such a contract or subcontract.

(2) The term `contractor' means, with respect to a covered contract, the contractor or subcontractor carrying out the covered contract.

(3) The term `private security functions' means activities engaged in by a contractor under a covered contract as follows:

(A) Guarding of personnel, facilities, or property of a Federal agency, the contractor or subcontractor, or a third party.

(B) Any other activity for which personnel are required to carry weapons in the performance of their duties.

(d) Exception- The requirements of this section shall not apply to contracts entered into by elements of the intelligence community in support of intelligence activities.