How private security contractors are governed

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1. What part 159 does

Part 159 of title 32 of the Code of Federal Regulations sets Defense Department policy for private security contractors in operations abroad (32 CFR 159.1). It assigns responsibilities and gives procedures for regulating the selection, accountability, training, equipping and conduct of personnel performing private security functions under a covered contract (32 CFR 159.1). It also covers incident reporting, use of and accountability for equipment, rules for the use of force, and a process for administrative action or removal of private security contractors and their personnel. The contract clauses that carry it into contracts are covered in private security functions under the FAR and DFARS.

2. Whom it binds

The part applies to every Defense Department component, from the Office of the Secretary of Defense and the military departments to the combatant commands, defense agencies and field activities (32 CFR 159.2(a)(1)). It also applies to the State Department and other federal agencies to the extent it implements section 862 of Public Law 110-181 (32 CFR 159.2(a)(2)). The Secretary of Defense may designate an area of combat operations or other significant military operations. Its standards then expand, in coordination with the Secretary of State, from Defense contractors to all government-funded private security contractors in that area.

Its policies apply to two groups (32 CFR 159.2(b)). One is Defense private security contractors and their personnel, at any tier, supporting contingency operations, humanitarian or peace operations, or other military operations or exercises abroad. The other is government-funded private security contractors in a designated area of combat operations, or of other significant military operations with the Secretary of State’s agreement.

Nonprofit nongovernmental organizations receiving grants or cooperative agreements for activities in an area of other significant military operations may be exempted (32 CFR 159.2(a)(3)). The Secretaries of Defense and State must agree, organization by organization or area by area. No exemption may be granted for an area of combat operations. The part also does not apply to intelligence community contracts in support of intelligence activities (32 CFR 159.4(d)).

3. Key definitions

A covered contract is a Defense contract for services or supplies in an area of contingency operations, humanitarian or peace operations, or other military operations or exercises abroad (32 CFR 159.3). It is also a non-Defense federal contract for services or supplies in a designated area of combat operations or other significant military operations. Subcontracts at any tier and task or delivery orders are included. Temporary arrangements by non-Defense contractors with individual local personnel not affiliated with a security company are excluded.

A private security contractor is a company contracted by the government to perform private security functions under a covered contract (32 CFR 159.3). An arming authority is the geographic combatant commander, or a designee, who can authorize civilians under their authority or supervision to be armed for security functions or to carry firearms for personal protection. For other significant military operations, the part applies only once the Secretaries of Defense and State agree, area by area. For areas of combat operations it always applies.

4. Limits on what armed contractors do

Contractors, including those performing private security functions, may not perform inherently governmental functions (32 CFR 159.3). Armed contractors are limited in the use of force to a defensive response to hostile acts or demonstrated hostile intent. Defense policy on who may carry weapons for self-defense is set in DoD Instruction 3020.41 on operational contract support.

5. Coordination and guidance

The selection, training, equipping and conduct of security personnel must be coordinated between the Defense and State Departments (32 CFR 159.4(a)). Coordination must start at the planning stage of contingency operations, so that guidance can be issued in time. Geographic combatant commanders issue tailored guidance and procedures for their areas, consistent with the part, the FAR and the DFARS (32 CFR 159.4(b)). In designated areas, the chief of mission issues implementing instructions for non-Defense security contractors, consistent with the combatant commander’s standards. The chief of mission may instead tell them to follow the combatant commander’s guidance, or a subordinate commander’s where specifically authorized and notified (32 CFR 159.4(c)).

6. Responsibilities

The Under Secretary of Defense for Personnel and Readiness sets policy on the total force mix, including where use of security contractors would be inherently governmental. The policies must also address where combatant commanders would need to assess whether reliance on them would be an unacceptable risk (32 CFR 159.5(a)). The Deputy Assistant Secretary of Defense for Logistics monitors registering, processing and accounting for security personnel (32 CFR 159.5(b)). Defense Pricing and Contracting makes sure the DFARS, and where appropriate the FAR in consultation with the FAR Council, carry the contracting requirements (32 CFR 159.5(c)). The Chairman of the Joint Chiefs of Staff keeps joint doctrine consistent with the governing directives (32 CFR 159.5(d)).

Combatant commanders issue guidance, as necessary, on selecting, training, accounting for and equipping security personnel (32 CFR 159.5(e)(1)). Individual training and qualification standards must at least meet one military department’s established standards. Commanders also issue written authorization identifying the individuals who may be armed, with the rules for the use of force if not already provided (32 CFR 159.5(e)(3)). Those rules must conform to DoD Directive 5210.56 on arming and the use of force and to the Joint Chiefs’ standing rules of engagement and use of force (32 CFR 159.5(e)(3)). Access to them may be controlled under FAR 52.204-2 on security requirements, DFARS 252.204-7000 on disclosure of information, or both (32 CFR 159.5(e)(3)). Through the contracting officer, each contractor should acknowledge that its personnel understand their duty to comply with the contract (32 CFR 159.5(e)(2)). The procedures, orders, directives and instructions under section 159.6 must be available in a single location, such as a website, consistent with security (32 CFR 159.5(e)(4)). Heads of Defense components must make sure requirement documents follow the procedures and command guidance, that solicitations and contracts carry the right clauses, and that enough oversight personnel, including qualified contracting officer’s representatives, are assigned (32 CFR 159.5(f)). Arming procedures are covered in arming and accounting for private security personnel.

Key terms

Covered contract	A contract, subcontract or order bringing private security work under part 159.
Private security contractor	A company contracted by the government for private security functions.
Arming authority	The combatant commander or designee who can authorize civilians to be armed.
Inherently governmental	Functions contractors may not perform; in that context armed contractors are limited to defensive force.
Total Force	Military, civilian, contracted and host nation personnel the Department relies on.

Every statement above links to the document behind it. The full source list for this piece is on the sources page.

This page describes public United States government programs for general information. It is not legal, regulatory or procurement advice, and it does not address the facts of any particular case.

How Sentfore supports this

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