22 U.S.C. § 4864 — Increased participation of United States

Page 1627 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 4864 Statutory Notes and Related Subsidiaries EVALUATION OF POLICIES AND PROCEDURES OF DEPART- MENT OF STATE ON PROTECTION OF CLASSIFIED IN- FORMATION AT DEPARTMENT HEADQUARTERS Pub. L. 107–306, title VIII, § 832, Nov. 27, 2002, 116 Stat. 2431, provided that: ‘‘(a) EVALUATION REQUIRED.—Not later than Decem- ber 31 of 2002, 2003, and 2004, the Inspector General of the Department of State shall conduct an evaluation of the policies and procedures of the Department on the protection of classified information at the Head- quarters of the Department, including compliance with the directives of the Director of Central Intelligence (DCIDs) regarding the storage and handling of Sen- sitive Compartmented Information (SCI) material. ‘‘(b) ANNUAL REPORT.—Except as provided in sub- section (c), not later than February 1 of 2003, 2004, and 2005, the Inspector General shall submit to the fol- lowing committees a report on the evaluation con- ducted under subsection (a) during the preceding year: ‘‘(1) The congressional intelligence committees. ‘‘(2) The Committee on Foreign Relations of the Senate and the Committee on International Rela- tions [now Committee on Foreign Affairs] of the House of Representatives. ‘‘(c) EXCEPTION.—The date each year for the sub- mittal of a report under subsection (b) may be post- poned in accordance with section 507(d) of the National Security Act of 1947 [50 U.S.C. 3106(d)], as added by sec- tion 811 of this Act. ‘‘(d) CONGRESSIONAL INTELLIGENCE COMMITTEES DE- FINED.—In this section, the term ‘congressional intel- ligence committees’ means— ‘‘(1) the Select Committee on Intelligence of the Senate; and ‘‘(2) the Permanent Select Committee on Intel- ligence of the House of Representatives.’’ [Reference to the Director of Central Intelligence or the Director of the Central Intelligence Agency in the Director’s capacity as the head of the intelligence com- munity deemed to be a reference to the Director of Na- tional Intelligence. Reference to the Director of Cen- tral Intelligence or the Director of the Central Intel- ligence Agency in the Director’s capacity as the head of the Central Intelligence Agency deemed to be a ref- erence to the Director of the Central Intelligence Agen- cy. See section 1081(a), (b) of Pub. L. 108–458, set out as a note under section 3001 of Title 50, War and National Defense.] § 4862. Prohibition on use of funds for facilities in Israel, Jerusalem, or West Bank None of the funds authorized to be appro- priated by this Act may be obligated or ex- pended for site acquisition, development, or con- struction of any facility in Israel, Jerusalem, or the West Bank. (Pub. L. 99–399, title IV, § 414, Aug. 27, 1986, 100 Stat. 868.) Editorial Notes REFERENCES IN TEXT This Act, referred to in text, is Pub. L. 99–399, Aug. 27, 1986, 100 Stat. 853, known as the Omnibus Diplomatic Security and Antiterrorism Act of 1986. For complete classification of this Act to the Code, see Short Title note set out under section 4801 of this title and Tables. § 4863. Use of cleared personnel to ensure secure maintenance and repair of diplomatic facili- ties abroad (a) Policies and regulations The Secretary of State shall develop and im- plement policies and regulations to provide for the use of persons who have been granted an ap- propriate United States security clearance to ensure that the security of areas intended for the storage of classified materials or the con- duct of classified activities in a United States diplomatic mission or consular post abroad is not compromised in the performance of mainte- nance and repair services in those areas. (b) Study and report The Secretary of State shall conduct a study of the feasibility and necessity of requiring that, in the case of certain United States diplomatic facilities abroad, no contractor shall be hired to perform maintenance or repair services in an area intended for the storage of classified mate- rials or the conduct of classified activities un- less such contractor has been granted an appro- priate United States security clearance. Such study shall include, but is not limited to, United States facilities located in Cairo, New Delhi, Ri- yadh, and Tokyo. Not later than 180 days after February 16, 1990, the Secretary of State shall report the results of such study to the Chairman of the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives. (Pub. L. 99–399, title IV, § 415, as added Pub. L. 101–246, title I, § 133(a), Feb. 16, 1990, 104 Stat. 32.) § 4864. Increased participation of United States contractors in local guard contracts abroad under diplomatic security program (a) Findings The Congress makes the following findings: (1) State Department policy concerning the advertising of security contracts at Foreign Service buildings has been inconsistent over the years. In many cases, diplomatic and con- sular posts abroad have been given the respon- sibility to determine the manner in which the private sector was notified concerning an invi- tation for bids or a request for proposals with respect to a local guard contract. Some United States foreign missions have only chosen to advertise locally the availability of a local se- curity guard contract abroad. (2) As a result, many United States security firms that provide local guard services abroad have been unaware that local guard contracts were available for bidding abroad and such firms have been disadvantaged as a result. (3) Undoubtedly, United States security firms would be interested in bidding on more local guard contracts abroad if such firms knew of the opportunity to bid on such con- tracts. (b) Objective It is the objective of this section to improve the efficiency of the local guard programs abroad administered by the Bureau of Diplo- matic Security of the Department of State and to ensure maximum competition for local guard contracts abroad concerning Foreign Service buildings. (c) Participation of United States contractors in local guard contracts abroad With respect to local guard contracts for a Foreign Service building which exceed $250,000 Page 1628 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 4864 and are entered into after February 16, 1990, the Secretary of State shall— (1) establish procedures to ensure that all so- licitations for such contracts are adequately advertised in the Commerce and Business Daily; (2) absent compelling reasons, award such contracts through the competitive process; (3) in evaluating proposals for such con- tracts, award contracts to the technically ac- ceptable firm offering the lowest evaluated price, except that proposals of United States persons and qualified United States joint ven- ture persons (as defined in subsection (d)) shall be evaluated by reducing the bid price by 10 percent; (4) in countries where contract denomina- tion and/or payment in local currencies con- stitutes a barrier to competition by United States firms— (A) allow solicitations to be bid in United States dollars; and (B) allow contracts awarded to United States firms to be paid in United States dol- lars; (5) ensure that United States diplomatic and consular posts assist United States firms in obtaining local licenses and permits; and (6) establish procedures to ensure that ap- propriate measures are taken by diplomatic and consular post management to assure that United States persons and qualified United States joint venture persons are not disadvan- taged during the solicitation and bid evalua- tion process. (d) Definitions For the purposes of this section— (1) the term ‘‘United States person’’ means a person which— (A) is incorporated or legally organized under the laws of the United States, includ- ing the laws of any State, locality, or the District of Columbia; (B) has its principal place of business in the United States; (C) has been incorporated or legally orga- nized in the United States for more than 2 years before the issuance date of the invita- tion for bids or request for proposals with re- spect to the contract under subsection (c); (D) has performed within the United States or overseas security services similar in complexity to the contract being bid; (E) with respect to the contract under sub- section (c), has achieved a total business vol- ume equal to or greater than the value of the project being bid in 3 years of the 5-year period before the date specified in subpara- graph (C); (F)(i) employs United States citizens in at least 80 percent of its principal management positions in the United States; and (ii) employs United States citizens in more than half of its permanent, full-time posi- tions in the United States; and (G) has the existing technical and finan- cial resources in the United States to per- form the contract; (2) the term ‘‘qualified United States joint venture person’’ means a joint venture in which a United States person or persons owns at least 51 percent of the assets of the joint venture; (3) the term ‘‘Foreign Service building’’ means any building or grounds of the United States which is in a foreign country and is under the jurisdiction and control of the Sec- retary of State, including residences of United States personnel assigned overseas under the authority of the Ambassador; and (4) the term ‘‘barrier to local competition’’ means— (A) conditions of extreme currency vola- tility; (B) restrictions on repatriation of profits; (C) multiple exchange rates which signifi- cantly disadvantage United States firms; (D) government restrictions inhibiting the free convertibility of foreign exchange; or (E) conditions of extreme local political instability. (e) United States minority contractors Not less than 10 percent of the amount of funds obligated for local guard contracts for Foreign Service buildings subject to subsection (c) shall be allocated to the extent practicable for contracts with United States minority small business contractors. (f) United States small business contractors Not less than 10 percent of the amount of funds obligated for local guard contracts for Foreign Service buildings subject to subsection (c) shall be allocated to the extent practicable for contracts with United States small business contractors. (g) Limitation of subcontracting With respect to local guard contracts subject to subsection (c), a prime contractor may not subcontract more than 50 percent of the total value of its contract for that project. (h) Award of local guard and protective service contracts In evaluating proposals for local guard con- tracts under this section, the Secretary of State may award such contracts on the basis of best value as determined by a cost-technical tradeoff analysis (as described in Federal Acquisition Regulation part 15.101) and, with respect to such contracts for posts that are not high risk, high threat posts (as such term is defined in section 4803 of this title), subject to congressional noti- fication 15-days prior to any such award. (Pub. L. 101–246, title I, § 136, Feb. 16, 1990, 104 Stat. 33; Pub. L. 103–236, title I, § 141, Apr. 30, 1994, 108 Stat. 401; Pub. L. 105–277, div. G, subdiv. B, title XXII, § 2210, Oct. 21, 1998, 112 Stat. 2681–811; Pub. L. 114–323, title I, § 112, Dec. 16, 2016, 130 Stat. 1910.) Editorial Notes CODIFICATION Section was enacted as part of the Foreign Relations Authorization Act, Fiscal Years 1990 and 1991, and not as part of the Diplomatic Security Act which comprises this chapter. AMENDMENTS 2016—Subsec. (h). Pub. L. 114–323 added subsec. (h). Page 1629 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 4865 1998—Subsec. (c)(3). Pub. L. 105–277, § 2210(1), amended par. (3) generally. Prior to amendment, par. (3) read as follows: ‘‘in evaluating and scoring proposals for such contracts, award not less than 60 percent of the total points on the basis of technical factors and subfac- tors;’’. Subsec. (c)(5). Pub. L. 105–277, § 2210(2), inserted ‘‘and’’ at end. Subsec. (c)(6). Pub. L. 105–277, § 2210(3), substituted pe- riod for ‘‘; and’’ at end. Subsec. (c)(7). Pub. L. 105–277, § 2210(4), struck out par. (7) which read as follows: ‘‘give preference to United States persons and qualified United States joint ven- ture persons where such persons are price competitive to the non-United States persons bidding on the con- tract, are properly licensed by the host government, and are otherwise qualified to carry out all the terms of the contract.’’ 1994—Subsec. (c). Pub. L. 103–236, § 141(1), added pars. (2) to (5), redesignated former pars. (2) and (3) as (6) and (7), respectively, and in par. (6) struck out ‘‘due to their distance from the post’’ after ‘‘evaluation process’’. Subsec. (d)(1)(D). Pub. L. 103–236, § 141(2)(A), sub- stituted ‘‘or’’ for ‘‘and’’. Subsec. (d)(4). Pub. L. 103–236, § 141(2)(B)–(D), added par. (4). Statutory Notes and Related Subsidiaries STRENGTHENING OVERSIGHT Pub. L. 115–31, div. J, title VII, § 7004(i), May 5, 2017, 131 Stat. 618, provided that: ‘‘Funds appropriated by this Act [div. J of Pub. L. 115–31, 131 Stat. 589, see Ta- bles for classification] and prior Acts making appro- priations for the Department of State, foreign oper- ations, and related programs under the heading ‘Diplo- matic and Consular Programs’ for Worldwide Security Protection shall be made available to strengthen over- sight of the local guard force at a critical post abroad through the use of United States Government employ- ees or contractors who are United States citizens: Pro- vided, That such funds are in addition to funds other- wise made available by such Acts for such purposes: Provided further, That the total annual operating costs associated with providing such oversight in fiscal year 2017 and subsequent fiscal years shall be shared among agencies through the International Cooperative Admin- istrative Support Services program: Provided further, That not later than 45 days after enactment of this Act [May 5, 2017], and prior to the obligation of funds for such purposes, the Secretary of State shall consult with the Committees on Appropriations on plans to carry out the requirement of this subsection.’’ AUTHORITY OF SECRETARY OF STATE Except as otherwise provided, Secretary of State to have and exercise any authority vested by law in any official or office of Department of State and references to such officials or offices deemed to refer to Secretary of State or Department of State, as appropriate, see section 2651a of this title and section 161(d) of Pub. L. 103–236, set out as a note under section 2651a of this title. § 4865. Security requirements for United States diplomatic facilities (a) In general The following security requirements shall apply with respect to United States diplomatic facilities and specified personnel: (1) Threat assessment (A) Emergency Action Plan The Emergency Action Plan (EAP) of each United States mission shall address a range of threats, including that of large explosive attacks from vehicles and from complex at- tacks (as such term is defined in section 4866 of this title), and the safety of employees during such an explosive attack or such a complex attack. Such plan shall be reviewed and updated annually. (B) Security Environment Threat List The Security Environment Threat List shall contain a section that addresses poten- tial acts of international terrorism against United States diplomatic facilities based on threat identification criteria that emphasize the threat of transnational terrorism and in- clude the local security environment, host government support, and other relevant fac- tors such as cultural realities. Such plan shall be reviewed and updated every six months. (2) Site selection (A) In general In selecting a site for any new United States diplomatic facility abroad in a loca- tion that has certain minimum ratings under the Security Environment Threat List as determined by the Secretary in his or her discretion, the Secretary shall ensure that all United States Government personnel at the post (except those under the command of an area military commander, personnel of the Peace Corps, and personnel of any other type or category of facility that the Sec- retary may identify) will be located on the site. (B) Waiver authority (i) In general Subject to clause (ii), the Secretary of State may waive subparagraph (A) if the Secretary, in consultation with, as appro- priate, the head of each agency employing personnel that would not be located at the site, if applicable, determines that it is in the national interest of the United States after taking account of any considerations the Secretary in his or her discretion con- siders relevant, which may include secu- rity conditions. (ii) Chancery or consulate building Prior to implementing the waiver au- thority under clause (i) with respect to a chancery or consulate building, the Sec- retary shall notify the appropriate con- gressional committees in writing of the waiver and the reasons for the determina- tion. (iii) Report to Congress The Secretary shall submit to the appro- priate congressional committees an annual report of all waivers under this subpara- graph. (3) Perimeter distance (A) Requirement (i) In general Each newly acquired United States dip- lomatic facility in a location that has cer- tain minimum ratings under the Security Environment Threat List as determined by the Secretary of State in his or her discre- tion shall—