< Back to S. 674 (110th Congress, 2007–2009)

Text of the Transparency and Accountability in Military and Security Contracting Act of 2007

This bill was introduced on February 16, 2007, in a previous session of Congress, but was not enacted. The text of the bill below is as of Feb 16, 2007 (Introduced).

Source: GPO

II

110th CONGRESS

1st Session

S. 674

IN THE SENATE OF THE UNITED STATES

February 16, 2007

introduced the following bill; which was read twice and referred to the Committee on Armed Services

A BILL

To require accountability and enhanced congressional oversight for personnel performing private security functions under Federal contracts, and for other purposes.

1.

Short title; table of contents

(a)

Short title

This Act may be cited as the Transparency and Accountability in Military and Security Contracting Act of 2007.

(b)

Table of contents

The table of contents for this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Findings.

Sec. 3. Reports on Iraq and Afghanistan contracts.

Sec. 4. Department of Defense report on strategy for and appropriateness of activities of contractors under Department of Defense contracts in Iraq, Afghanistan, and the global war on terror.

Sec. 5. Requirements related to personnel performing private security functions under Federal contracts during contingency operations.

Sec. 6. Improved coordination between the Armed Forces and contractors performing private security functions in contingency operations.

Sec. 7. Legal status of contract personnel.

Sec. 8. Federal Bureau of Investigation investigative unit for contingency operations.

Sec. 9. Definitions.

Sec. 10. Effective date.

2.

Findings

Congress makes the following findings:

(1)

United States Government agencies, including the Department of Defense, the Department of State, the Department of the Interior, the United States Agency for International Development, and the intelligence community of the United States Government, are increasingly relying on private contractors to perform duties, including the provision of security and other traditionally military and governmental functions, in Iraq, Afghanistan, and other contingency operations.

(2)

Estimates of the number of contract personnel in Iraq, including private security contractors, vary widely. The United States Central Command estimated the number to be 100,000 in 2006, and the Government Accountability Office concluded in 2005 that the Department of Defense (DOD) estimated at least 60 private security providers were working in Iraq with perhaps as many as 25,000 employees. In March 2006, the Director of the Private Security Company Association of Iraq estimated that approximately 181 private security companies were working in Iraq with just over 48,000 employees.

(3)

The various functions carried out by these personnel have entailed great danger to these personnel, but exact numbers of casualties are unknown. Estimates suggest that some 770 contractors have died, and thousands more have been wounded, in Iraq since 2003.

(4)

The multinational character of private security contracting poses oversight and accountability challenges. In addition to Iraqi and United States security contractors working in Iraq, contractors also included citizens from Australia, Chile, Colombia, Croatia, Fiji, India, Nepal, New Zealand, Nicaragua, Russia, Serbia, South Africa, Sri Lanka, and the United Kingdom, among other countries.

(5)

In June 2006, the Government Accountability Office reported that private security providers continue to enter the battle space without coordinating with the U.S. military, putting both the military and security providers at a greater risk for injury.

(6)

According to published accounts and government studies, the assignments being given private security contractors are often sensitive, including the protection of United States military bases, interrogation of detainees, maintenance and technical assistance to weapons systems, logistics and base operations functions, escort of United States convoys, and protection of key United States Government personnel.

(7)

A recent report by the Congressional Research Service found that new [Department of Defense] contracts have characteristics that make oversight difficult.

(8)

Contractors are playing an expanded role in the national security operations of the United States and the manner in which the United States supports its troops in the field, especially in contingency operations, and therefore contracting practices and policies must be subject to improved and transparent oversight and management.

3.

Reports on Iraq and Afghanistan contracts

(a)

Reports required

Not later than 90 days after the date of the enactment of this Act, the Secretary of Defense, the Secretary of State, the Secretary of the Interior, the Administrator of the United States Agency for International Development, and the Director of National Intelligence shall each submit to Congress a report that contains the information, current as of the date of the enactment of this Act, as follows:

(1)

The number of persons performing work in Iraq and Afghanistan under contracts (and subcontracts at any tier) entered into by departments and agencies of the United States Government, including the Department of Defense, the Department of State, the Department of the Interior, the United States Agency for International Development. and the elements of the intelligence community, respectively.

(2)

The companies awarded such contracts and subcontracts.

(3)

The total cost of such contracts.

(4)

The total number of persons who have been killed or wounded in performing work under such contracts.

(5)

A description of the military equipment and safety equipment provided for the protection of contractors under such contracts, and an assessment of the adequacy of such equipment.

(6)

The policies and procedures through which the departments and agencies of the United States Government instruct and inform contractors under such contracts of the applicability of law to their activities under such contracts, including the laws of the United States, Iraq, and Afghanistan, and other applicable laws.

(7)

The policies and procedures through which the departments and agencies of the United States Government monitor contractors under such contracts on their adherence to applicable law, including the laws of the United States, Iraq, and Afghanistan.

(8)

The laws, if any, determined to have been broken in the performance of such contracts, including laws of the United States, Iraq, and Afghanistan, and other applicable laws.

(9)

A description of the disciplinary actions that have been taken against persons performing work under such contracts by the contractor concerned, the United States Government, or the Government of Iraq or the Government of Afghanistan.

(b)

Elements of the intelligence community defined

In this section, the term elements of the intelligence community means the elements of the intelligence community specified in or designated under section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)).

4.

Department of Defense report on strategy for and appropriateness of activities of contractors under Department of Defense contracts in Iraq, Afghanistan, and the Global War on Terror

(a)

Report required

Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall submit to Congress a report setting forth the strategy of the Department of Defense for the use of, and a description of the activities being carried out by, contractors and subcontractors in support of Department missions in Iraq, Afghanistan, and the Global War on Terror, including its strategy for ensuring that such contracts do not—

(1)

have private companies and their employees performing inherently governmental functions, emergency essential activities, or mission critical activities;

(2)

place contractors in supervisory roles over United States Government personnel; or

(3)

threaten the safety of contractor personnel or United States Government personnel.

(b)

Emergency essential activities or mission critical activities defined

In this section, the term emergency essential activities or mission critical activities means any activities as follows:

(1)

Activities for which continued performance is considered essential to support combat systems and operational activities.

(2)

Activities whose delay, absence, or failure of performance would significantly affect the broader success or failure of a military operation.

5.

Requirements related to personnel performing private security functions under Federal contracts during contingency operations

(a)

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

(1)

Provision of 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 the 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.

(4)

Accounting

Each covered contract shall include the following requirements:

(A)

Upon award of the contract, the contractor shall provide to the contracting officer 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 to the contracting officer a report on the actual costs of carrying out private security functions under the contract, in the same categories as provided under subparagraph (A).

(5)

Quarterly reports on staffing

Each covered contract shall require the contractor to submit to the contracting officer on a quarterly basis a report on the number of personnel performing private security functions under such contract during the preceding 90 days and on the location or locations in which such personnel performed such functions.

(6)

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 private security functions under the contract, including oversight inspections of facilities and operations.

(7)

Waiver authority

(A)

Waiver

The head of the agency awarding a covered contract may waive a requirement of this subsection 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

Commencing 180 days after the date of the enactment of this Act, and continuing every 90 days thereafter, each head of an agency who has, during the preceding 90 days, waived a requirement under this subsection with respect to a covered contract shall submit to the committees of Congress referred to in subparagraph (C) a report that—

(i)

describes each such waiver by the head of the agency, including the contract involved and the emergency or exceptional situation that justified such waiver; and

(ii)

contains a plan for bringing each such contract into compliance with the waived requirements as soon as possible or an explanation of why such waiver needs to be permanent.

(C)

Committees of congress

The committees of Congress referred to in this subparagraph are the following:

(i)

The Committees on Appropriations, Armed Services, Oversight and Government Reform, and Foreign Affairs of the House of Representatives.

(ii)

The Committees on Appropriations, Armed Services, Homeland Security and Governmental Affairs, and Foreign Relations of the Senate.

(b)

Reports required

(1)

In general

During a contingency operation, the head of each agency with any covered contracts in effect shall submit to Congress reports on such contracts in accordance with this subsection.

(2)

Matters covered

Each report required by paragraph (1) shall include the following information:

(A)

Total number of covered contracts awarded by the agency with respect to the contingency operation.

(B)

The total number of contracting officers overseeing the covered contracts reported under subparagraph (A).

(C)

The most current information available under subsection (a)(5) with respect to each covered contract.

(D)

The number of covered contracts awarded since the last report.

(E)

The total number of contract personnel working on the covered contracts reported under subparagraph (D).

(F)

The total value of awards for covered contracts reported under subparagraph (D).

(G)

A detailed catalogue of activities performed under covered contracts reported under subparagraph (D).

(3)

Deadlines

The head of an agency shall submit an initial report as required by paragraph (1) within 90 days after first awarding a covered contract, and shall issue additional reports thereafter every 90 days.

(4)

Committees

The report required by paragraph (1) shall be submitted to the Committees on Appropriations and Armed Services of the House of Representatives and the Senate.

(5)

Form

The report required by paragraph (1) shall be submitted in unclassified form, but may include a classified annex.

6.

Improved coordination between the Armed Forces and contractors performing private security functions in contingency operations

(a)

Rules of engagement

(1)

Requirement to issue

Not later than 15 days after the date on which a contingency operation is initiated, the Chairman of the Joint Chiefs of Staff shall issue rules of engagement 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 of engagement issued under this subsection.

(2)

Notification

The commander of the combatant command whose area of responsibility includes the theater of operations of a contingency operation shall communicate the rules of engagement for the contingency operation 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 of engagement for specific contractors.

(b)

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

(1)

Regulations

Not later than 30 days after the date on which a contingency operation is initiated, the head of each agency awarding a covered contract shall prescribe in regulations minimum standards (appropriate for the agency) for contract personnel performing private security functions within the area covered by the contingency operation, including minimum training and certification standards. The standards may vary based on the duties of personnel, but must address criminal records, 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.

(c)

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

(1)

Designation of Theater Security Contract Coordinating Officer

For each contingency operation in which contract personnel performing private security functions are active, the Chairman of the Joint Chiefs of Staff shall designate a member of the Armed Forces or civilian employee of the Department to act as the coordinating officer on security contracts in the theater of operations of such contingency operation. The individual so designated shall be known as the Theater Security Contract Coordinating Officer for the theater of operations of such contingency operation.

(2)

Responsibilities of Theater Security Contract Coordinating Officer

The Theater Security Contract Coordinating Officer for a theater of operations of a contingency operation shall, for such theater of operations—

(A)

establish regulations providing for reliable lines of communications between contract personnel performing private security functions and the Armed Forces;

(B)

maintain a current database on the contract personnel performing such functions, including their employing contractors, nationalities, backgrounds, and training, and the nature of their activities;

(C)

communicate the rules of engagement established under subsection (a) to contractors and contract personnel performing such functions;

(D)

take any actions authorized by the Chairman of the Joint Chiefs of Staff for purposes of this subsection to ensure the compliance of contractors in the theater of operations with the requirements of paragraph (3);

(E)

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

(F)

as appropriate, communicate up-to-date information about the security environment that may be relevant to contract personnel.

(3)

Requirements for contractors relating to Theater Security Contract Coordinating Officer

Each contractor in a theater of operations of a contingency operation shall be required to—

(A)

register with the Theater Security Contract Coordinating Officer for the theater of operations and keep the Officer currently informed on the number, nationality, background, and training of the contract personnel assigned to perform private security functions under a covered contract;

(B)

report any incidents in which contract personnel performing such functions use force or are attacked by hostile forces;

(C)

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 regulations issued under paragraph (2)(A), tactical information, such as information on the movement of contractor personnel performing such functions 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.

7.

Legal status of contract personnel

(a)

Clarification of Military Extraterritorial Jurisdiction Act

(1)

Inclusion of contractors

Subsection (a) of section 3261 of title 18, United States Code, is amended—

(A)

by striking or at the end of paragraph (1);

(B)

by striking the comma at the end of paragraph (2) and inserting ; or; and

(C)

by inserting after paragraph (2) the following:

(3)

while employed under a contract (or subcontract at any tier) awarded by any department or agency of the United States Government, where the work under such contract is carried out in a region outside the United States in which the Armed Forces are conducting a contingency operation,

.

(2)

Definition

Section 3267 of title 18, United States Code, is amended by adding at the end the following:

(5)

The term contingency operation has the meaning given that term in section 101(a)(13) of title 10.

.

(b)

Sense of Congress on investigation and prosecution of abuses by private security contractors and others

It is the sense of Congress that—

(1)

if there is probable cause to believe that an individual assigned to perform private security functions under a covered contract, any other contractor personnel, or any contractor has violated section 3261(a) of title 18, United States Code, except in situations in which the individual is prosecuted under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), or under other law, the Department of Defense should use the authority provided in section 3262 of title 18, United States Code, to arrest and detain such individual. personnel, or contractor and transfer such individual, personnel, or contractor to civilian authorities for prosecution; and

(2)

the Secretary of Defense should issue guidance, as soon as possible after the date of the enactment of this Act, on how the amendment made by section 552 of the John Warner National Defense Authorization Act of 2007 (Public Law 109–364; 120 Stat. 2217) to section 802(a)(10) of title 10, United States Code (article 2(a)(10) of the Uniform Code of Military Justice), will be implemented.

(c)

Department of Justice Inspector General Report

(1)

Report required

Not later than 30 days after the date of the enactment of this Act, the Inspector General of the Department of Justice shall submit to Congress a report.

(2)

Content of report

The report shall include—

(A)

a description of the status of Department of Justice investigations of abuses alleged to have been committed by contract personnel performing private security functions, other contract personnel, or contractors under covered contracts, which shall include—

(i)

the number of complaints received by the Department of Justice;

(ii)

the number of investigations into complaints opened by the Department of Justice;

(iii)

the number of criminal cases opened by the Department of Justice; and

(iv)

the number and result of criminal cases closed by the Department of Justice; and

(B)

findings and recommendations about the capacity and effectiveness of the Department of Justice in prosecuting misconduct by such contract personnel.

(3)

Form

The report shall be submitted in unclassified form, but may include a classified annex.

8.

Federal Bureau of Investigation investigative unit for contingency operations

(a)

Establishment of Theater investigative unit

For each theater of operations established in connection with a contingency operation in which contract personnel are carrying out work under a covered contract, the Federal Bureau of Investigation shall establish a Theater Investigative Unit, which shall be responsible for investigating allegations of criminal misconduct under section 3261 of title 18, United States Code, by contract personnel.

(b)

Responsibilities of theater investigative unit

The Theater Investigative Unit established for a theater of operations shall—

(1)

investigate reports that raise reasonable suspicion of criminal misconduct by contract personnel;

(2)

investigate reports of fatalities resulting from the use of force by contract personnel; and

(3)

upon conclusion of an investigation of alleged criminal misconduct, refer the case to the Attorney General of the United States for further action, as appropriate in the discretion of the Attorney General.

(c)

Responsibilities of federal bureau of investigation

(1)

Resources

The Federal Bureau of Investigation shall ensure that each Theater Investigative Unit has adequate resources and personnel to carry out its responsibilities.

(2)

Notification

The Federal Bureau of Investigation shall notify Congress whenever a Theater Investigative Unit is established or terminated under this section.

(d)

Responsibilities of other federal agencies

An agency operating in a theater of operations in which a Theater Investigative Unit is established shall cooperate with and support the activities of the Theater Investigative Unit. Any investigation carried out by the Inspector General of an agency shall be coordinated with the activities of the unit as appropriate.

9.

Definitions

In sections 5 through 8 of 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 any activity as follows:

(A)

Any activity for which personnel are allowed to carry weapons in the performance of the contract.

(B)

The performance of—

(i)

military logistics for operations;

(ii)

maintenance or arming of weapons systems;

(iii)

interrogation of prisoners;

(iv)

convoy security;

(v)

guarding vital facilities and personnel;

(vi)

tactical security work; or

(vii)

local force training.

(C)

Any other activity in support of the contingency operation, as determined by the Theater Security Contract Coordinating Officer for the theater of operations of the contingency operation as designated under section 6(c)(1).

(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(13) of title 10, United States Code.

(5)

Contractor

The term contractor means an entity performing a covered contract (including a subcontract at any tier).

(6)

Contract personnel

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

10.

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 enactment of this Act to ensure compliance with the provisions of this Act.