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  • Question

    Can we put a contract in place for these type of "escort" services? From past experience (this is 25 years ago) when we had a construction project that required escorts, the base had a list of active military or civilian personnel who had the required clearances so the construction contractor hired those individuals to provide escort services for the construction workers. they ensured the workers didn't leave the site, if they did, they had to be escorted to and from the work site. Some believe this cannot be done because this is inherently governmental. If it can't be done via contract, I assume the only option would be to have active duty military at the site with the required clearances to peform the service.


    Answer

    1. The FAR and DFARS references quoted below in pertinent part are applicable to this response.

    FAR 7.503 -- Policy
    (a) Contracts shall not be used for the performance of inherently governmental functions.

    (d) The following is a list of examples of functions generally not considered to be inherently governmental functions.
      (19) Contractors providing special non-law enforcement, security activities that do not directly involve criminal investigations, such as prisoner detention or transport and non-military national security details.

    (e) Agency implementation shall include procedures requiring the agency head or designated requirements official to provide the contracting officer, concurrent with transmittal of the statement of work (or any modification thereof), a written determination that none of the functions to be performed are inherently governmental.

    DFARS 207.503 -- Policy
    (e) The written determination required by FAR 7.503(e), that none of the functions to be performed by contract are inherently governmental—
      (i) Shall be prepared using DoD Instruction 1100.22, Guidance for Determining Workforce Mix; and
      (ii) Shall include a determination that none of the functions to be performed are exempt from private sector performance, as addressed in DoD Instruction 1100.22.

    2. The following references quoted in pertinent part is also applicable to this response:

    A. DoD Instruction 1100.22, Guidance for Determining Workforce Mix, April 12, 2010
    Enclosure 4 – Manpower Mix Criteria,

    4. Criterion E – DoD Civilian Authority, Direction and Control
    b. Civilian Expertise and Experience.
    8(c) Certain law enforcement operations. … However, properly trained and cleared contractors may perform special non-law-enforcement security activities that do not directly involve criminal investigations.

    11. Criterion L – Exempted by Law, E.O, Treaty, or IA
    a. Law and E.o. Military and civilian manpower shall be coded “L” if the activity is not IG or exempt from private sector performance for reasons covered by criteria A through K but is restricted from private sector performance due to a law or E.o., including:
      (1) Manpower that performs firefighting and security guard functions at DoD military installations/facilities covered by section 2465 of Reference (h), that are not coded “A” through “K.”

    B. 10 U.S.C. § 2465. Prohibition on contracts for performance of firefighting or security-guard functions
    http://www.gpo.gov/fdsys/pkg/USCODE-2011-title10/pdf/USCODE-2011-title10-subtitleA-partIV-chap146-sec2463.pdf
    (a) Except as provided in subsection (b), funds appropriated to the Department of Defense may not be obligated or expended for the purpose of entering into a contract for the performance of firefighting or security-guard functions at any military installation or facility.

    (b) The prohibition in subsection (a) does not apply to the following contracts:
      (1) A contract to be carried out at a location outside the United States (including its commonwealths, territories, and possessions) at which members of the armed forces would have to be used for the performance of a function described in subsection (a) at the expense of unit readiness.
      (2) A contract to be carried out on a Government-owned but privately operated installation.
      (3) A contract (or the renewal of a contract) for the performance of a function under contract on September 24, 1983.

    C. Definition of “security guard”

    “Security Guard - A person hired by a private organization to guard a physical plant and maintain order; a guard who keeps watch; a person who keeps watch over something or someone.”
    The American Heritage® Dictionary of the English Language, Fourth Edition
    http://www.thefreedictionary.com/security+guard

    “Security Guard. A security officer (or security guard) is a person who is paid to protect property, assets, or people. They are usually privately and formally employed civilian personnel. Security officers are generally uniformed and act to protect property by maintaining a high visibility presence to deter illegal and inappropriate actions, observing (either directly, through patrols, or by watching alarm systems or video cameras) for signs of crime, fire or disorder; then taking action and reporting any incidents to their client and emergency services as appropriate.”
    http://en.wikipedia.org/wiki/Security_guard

    3. From the limited information provided in this inquiry, it is not entirely clear what the exact nature of the required services are, the manner in which the contractor will perform the contract, or the manner in which the Government will administer contractor performance. As indicated in the references to law and regulation quoted above, if this effort would actually be tantamount to performing security-guard functions on military installation or facility inside the United States (including its commonwealths, territories, and possessions), then a contract could not be awarded to the private sector for these services. However, if this effort could be considered more in the nature of a “special non-law-enforcement security activity”, then the award of a contract to the private sector for these services may be possible.

    4. Based on the above, we recommend that the acquisition team (i.e., Contracting Officer, legal counsel, customer, and cognizant security personnel) jointly determine the exact nature of the services required and then select the most appropriate approach that is compliant with the applicable law and regulation (i.e., either award a services contract or use available Government personnel as escorts). If the team determines that the award of a services contract is appropriate under the circumstances, then the designated requirements official must provide the determination required by FAR 7.503(e) and DFARS 207.503(e) that that none of the services to be performed are exempt from private sector performance as set forth in DoD Instruction 1100.22.



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