§ 4864. — Increased participation of United States contractors in local guard contracts abroad under diplomatic security program.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 22USC4864]
TITLE 22--FOREIGN RELATIONS AND INTERCOURSE
CHAPTER 58--DIPLOMATIC SECURITY
SUBCHAPTER IV--DIPLOMATIC SECURITY PROGRAM
Sec. 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 consular
posts abroad have been given the responsibility to determine the
manner in which the private sector was notified concerning an
invitation 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 security
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 contracts.
(b) Objective
It is the objective of this section to improve the efficiency of the
local guard programs abroad administered by the Bureau of Diplomatic
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 and are entered into after February 16, 1990, the
Secretary of State shall--
(1) establish procedures to ensure that all solicitations 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 contracts, award contracts
to the technically acceptable firm offering the lowest evaluated
price, except that proposals of United States persons and qualified
United States joint venture persons (as defined in subsection (d) of
this section) shall be evaluated by reducing the bid price by 10
percent;
(4) in countries where contract denomination and/or payment in
local currencies constitutes 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 dollars;
(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 appropriate measures are
taken by diplomatic and consular post management to assure that
United States persons and qualified United States joint venture
persons are not disadvantaged during the solicitation and bid
evaluation 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, including 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 organized in the United
States for more than 2 years before the issuance date of the
invitation for bids or request for proposals with respect to the
contract under subsection (c) of this section;
(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 subsection (c) of
this section, has achieved a total business volume 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 subparagraph (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 positions in the United States; and
(G) has the existing technical and financial resources in
the United States to perform 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 Secretary 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 volatility;
(B) restrictions on repatriation of profits;
(C) multiple exchange rates which significantly 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)
of this section 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)
of this section 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) of
this section, a prime contractor may not subcontract more than 50
percent of the total value of its contract for that project.
(Pub. L. 101-246, title I, Sec. 136, Feb. 16, 1990, 104 Stat. 33; Pub.
L. 103-236, title I, Sec. 141, Apr. 30, 1994, 108 Stat. 401; Pub. L.
105-277, div. G, subdiv. B, title XXII, Sec. 2210, Oct. 21, 1998, 112
Stat. 2681-811.)
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
1998--Subsec. (c)(3). Pub. L. 105-277, Sec. 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
subfactors;''.
Subsec. (c)(5). Pub. L. 105-277, Sec. 2210(2), inserted ``and'' at
end.
Subsec. (c)(6). Pub. L. 105-277, Sec. 2210(3), substituted period
for ``; and'' at end.
Subsec. (c)(7). Pub. L. 105-277, Sec. 2210(4), struck out par. (7)
which read as follows: ``give preference to United States persons and
qualified United States joint venture persons where such persons are
price competitive to the non-United States persons bidding on the
contract, 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, Sec. 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, Sec. 141(2)(A), substituted
``or'' for ``and''.
Subsec. (d)(4). Pub. L. 103-236, Sec. 141(2)(B)-(D), added par. (4).
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.
