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Sié Chéou-Kang CenterPrivate Security Monitor

Members of the U.S. Army Corps of Engineers Afghanistan Engineer District-South conduct inspections while a team provides security.

United States

Department of Defense Regulations and Instructions

The U.S. Department of Defense (DOD) has employed more private military and security contractors than any other U.S. government agency. As a result of the U.S. operations in Iraq and Afghanistan the number of military and security contractors used by the DOD increased dramatically. To manage contractors operating in a variety of capacities and theaters, the DOD has sought to enforce the terms of each specific employment contract. The contracts are classified, but the DOD has reported that each contains defined performance terms that can be used by DOD commanders to control contractor personnel. In addition to job responsibilities, contracts specify chain of command, weapons policy, guidance on the use of force, and terms for suspension and debarment. Example contract terms can be found in Appendix E to the DOD Handbook for Armed Private Security Contractors in Contingency Operations.

Throughout the last decade, the DOD has also implemented significant policy changes to standardize and improve its contract management and oversight, particularly for private security contractors. Notably, in August 2011, final rule 32 C.F.R. 159, "Private Security Contractors Operating in Contingency Operations" was issued. The rule addresses the selection, accountability, training, equipping, and conduct of personnel performing private security functions under a government contract. It also establishes procedures for incident reporting, rules for the use of force, and a process for administrative action against or the removal of PMSCs and their personnel.

Specific DOD offices within the Under Secretary of Defense for Acquisition, Logistics, and Technology—the Office of Program Support and the Office for Defense Procurement and Acquisition Policy—have also played particularly important roles. The Office of Program Support has participated in transnational regulatory efforts such as the Montreux Document and has lent DOD support to ASIS International's efforts to develop operational standards to be used in government contracts with private security companies.

In addition to the policy and regulations set forth in this section, there are a number of specialized government departments and Congressional committees that review and report on DOD policies, oversight and coordination of private military and security services. Reports from those departments can be found in the sections on U.S. Federal Research and Oversight Bodies and U.S. Congressional Committees.

Current Regulations and Ongoing Reform

Defense Federal Acquisition Regulation Supplement (DFARS)

The Defense Federal Acquisition Regulation Supplement (DFARS) implements and supplements the Federal Acquisition Regulations (FAR). It applies to all acquisitions and contracts of the DOD, Air Force, Army, Navy, and Marine Corps. Companies contracting with these agencies must have a working knowledge of DFARS to ensure full compliance with all applicable laws and requirements.

Relevant procedures, guidance, and information that do not meet the criteria for inclusion in the DFARS are issued in the DFARS companion resource, Procedures, Guidance and Information (PGI). Unclassified, non-confidential memoranda, guidance, and other procurement-related policy documents can be found in the appropriate PGI subpart.

DFARS 225.7402, Contractor personnel authorized to accompany U.S. Armed Forces deployed outside the United States, is highly relevant.

The DFARS can be found online.

Directives and Instructions

U.S. Department of Defense issues internal rules known as Directives and Instructions. Directives establish law and policy and delegates authority to DOD components. DOD Instructions implement the policy set forth in Directives. A vast number of Directives and Instructions are drafted because of statutory commands issued by Congress in the National Defense Authorization Acts. These, like many other DOD issuances, have binding legal effect, and therefore the DOD maintains a public website where new Department issuances are published. Note that Directives, Instructions, and other existing orders are often modified by DOD commanders in the field through Fragmentary Orders. Fragmentary Orders are used to communicate operational changes to all levels of command in a timely, uniform manner. They are largely classified.

When a DOD issuance may affect the public at large, the DOD will undergo the process of notice-and comment rulemaking. This process requires the DOD to give public notice of its intent to draft a specific rule. The DOD then accepts comments from the public on the proposed rule, and after consideration of all comments, publishes a final rule with explanatory notes in the Federal Register. To date, only one rule regulating private security activity has undergone the notice-and-comment process—32 C.F.R. 159, Private Security Contractors Operating in Contingency Operations. However, public comments were due on interim final rule 32 C.F.R. 158, Operational Contract Support in February 2012, meaning a final rule will be issued in due time. By visiting www.regulations.gov, you can see and comment on rules the Department of Defense and other Federal Agencies are proposing which may affect the public.

For an overview of DOD perspectives on the regulation of Private Security contractors, please see Christopher Mayer's (DOD Director, Contingency Contractor Standards and Compliance) presentation titled US Government Perspective on Managing Private Security.

Rules

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Directives

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Instructions

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Handbooks and Non-Binding Guidance

Department of Defense handbooks provide non-binding guidance to DOD components. DOD handbooks differ from manuals, as manuals implement or supplement a directive or policy instruction, and are not issued unless expressly authorized by a DOD directive or instruction. The handbooks that appear below provide guidance to U.S. military commanders and staff on procurement of, and interaction with, private military and security service providers, and aim to aid U.S. military personnel understand the laws and policy related to the planning, employment, management, and oversight of contractors involved in U.S. military operations.


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Synchronized Predeployment and Operational Tracker (SPOT)

The Synchronized Predeployment and Operational Tracker (SPOT) is a web-based database used by the U.S. government to manage and track contracts and contractors supporting U.S. Government agencies during contingency operations. SPOT was created in accordance with Section 861 of the 2008 National Defense Authorization Act which provides that the Secretary of Defense, the Secretary of State, and the Administrator of USAID must agree to adopt a common database for contractors in Iraq and Afghanistan.

The SPOT system is used to capture data relating to logistics, operations, planning, and reporting of contractor status and capabilities. It serves several practical purposes: it allows contractors to request and receive specific logistics support such as meals, housing, transportation, medical support while working in-country; it provides the government with information on what contractor employees are working in what locations which makes approval of invoices and inspection of work easier; it tracks contractor operated armored vehicles, helicopters, and other equipment; it allows the government to review the credentials of individuals requesting the authority to carry weapons (either government-furnished or contractor-acquired) in the performance of a U.S. government contract or grant; and it allows agencies to report to Congress and other oversight organizations on the size of contractor and grantee presence in areas of combat operations or other significant military operations.

The SPOT system does have limitations. SPOT is not used for intelligence gathering or vetting of personnel. Background checks of PMSCs are conducted by the contractor and validated by the contracting officer, and only this validation is annotated in SPOT. Most notably, the SPOT database has been used by the U.S. government to collect contractor data working for named military operations only, and SPOT is not yet used to track all government use of private security or other contractors.

SPOT data is not available to the public.

To learn more about SPOT, visit the SPOT website or review the Business Rules for the Synchronized Predeployment and Operational Tracker published in 2010.

Related Resources on Continuing DOD Oversight Challenges

Despite ongoing reform, DOD command and control over PMSCs remains complex. In Iraq, for example, contractors received direction from and were answerable to the Defense Contract Management Agency; Armed Contractor Oversight Division of the Multi-National Force-Iraq; Joint Contracting Command-Iraq/Afghanistan; the U.S. Embassy-Baghdad and its Regional Security Office; and DOD-appointed Contracting Officer Representatives. Moreover, a military commander's ability to control and constrain PMSC personnel is still primarily limited to the contractual terms, supplemented by applicable host nation law, U.S. federal law, and international law. (For one analysis of the improvements made see Field Commanders See Improvements in Controlling and Coordinating Private Security Contractor Missions in Iraq (SIGIR 09-022). For analysis of the remaining issues see Control Weaknesses Remain in Oversight of Theater-wide Internal Security Services Contracts (SIGIR 11-018).

Department of Defense Reports to Congress

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