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A compendium of concrete good practices to security and human rights challenges aimed at companies, security providers, civil society, national regulators and other practitioners
Use the findings of the risk assessment to define quality and cost considerations (See Challenge 3.1.a.)
Stipulate in a Request for Proposals (RFP) “that each applicant (PSP) provide background information in order to assist the client in assessing their application in terms of due diligence, professionalism and financial probity” (SCG: 4)
The ICoC explicitly states that “Signatory Companies will not knowingly enter into contracts where performance would directly and materially conflict with the principles of this Code, applicable national or international law, or applicable local, regional and international human rights law, and are not excused by any contractual obligation from complying with this Code. To the maximum extent possible, Signatory Companies will interpret and perform contracts in a manner that is consistent with this Code.” (ICoC: par. 20)
Contracting companies should therefore bear in mind that demanding very low price bids for the required services may exclude PSPs which are compliant with the ICoC from participating in the bidding in the first place, if the remuneration is not sufficient to comply with their standards.
Conduct a thorough due diligence assessment of bids and bidding PSPs, involving consultation with “like-minded industry players, non-governmental organisations, government officials, and other stakeholders, about the reputation of and their experiences with various (PSPs)” (IGTs: 52)
The Sarajevo Client Guidelines for the Procurement of Private Security Companies (SEESAC, 2006) recommend to “evaluate bids in two stages; automatic exclusion on the basis of set criteria and the assessment of tenders according to award criteria.” (SCG: 4)
1. Automatic exclusion (SCG: 5):
a. Inability to fulfil any aspect of the RFP;
b. Failure to provide requested documentation;
c. Submission of false information or misleading information;
d. Bankruptcy or proceedings for a declaration of bankruptcy;
e. Failure to pay taxes or social security obligations;
f. Grave professional misconduct by the company or one of its management;
g. Conviction of the company or its management of an offence concerning its professional conduct;
h. Proven involvement in political activities; and
i. Proven breaches of international humanitarian and human rights law.
a. Personnel standards
Select a PSP on the basis of the two-stage evaluation process and establish formal contract with the selected provider (See Challenge 3.2.c.)
Develop company policies and procedures that clarify and explain the roles and responsibilities of the different security actors around the project site and include these in the contract with the PSP
Carry out due diligence in order to identify and address human rights risks and impacts, taking into account potential liabilities
Ensure clear communications and effective coordination
To the extent possible, share information on company’s security arrangements and procedures with local stakeholders
Ensure that grievances and complaints are not merely passed on to the PSP but are discussed and addressed together with company representatives
Develop policies, procedures and guidelines defining the roles and responsibilities of private security providers
Develop a contract with the PSP that includes clear “clauses and performance requirements that ensure respect for relevant national law, international humanitarian law and human rights law” by the contracted PSP (MD Part 2: par. 14), and discuss these with the PSP to make sure the security provider understands its performance objectives. Such clauses may address:
Complement training provided by the PSP to its staff with the following measures:
Conduct regular performance checks and meet regularly with the PSP management to discuss the findings (MIGA: IV-5)
If the PSP still fails to comply with any or several of the clauses in the contract, consider the following options (IGTs: 57):
Termination of Contract with PSP and Transition of Security Delivery
A company may choose to terminate its contract with a Private Security Provider (‘PSP) for a variety of reasons including cost, change in requirements or a failure of the PSC to fulfil its contractual obligations.
Where a contracting company (henceforth, a ‘company’) terminates a PSP contract with a view to replacing it with another PSP, both the termination of the existing contract and the transition to new security arrangements need to be managed proactively, as failure to do so may expose the company and those associated with its operations (such as: its personnel, contractors, suppliers and/or other public or private security providers) to multiple risks.
Companies should consider PSP contract termination from two angles: legal and operational. As with any contractual arrangement, a company should seek advice on its legal obligations relating to the termination of the PSP contract. It is beyond the scope of this section to discuss legal issues (which, by nature, are jurisdiction- and contract-specific). Instead, the focus is on the operational issues relating to discontinuing a PSP contract.
Among the more pertinent operational issues for a company to consider are:
It is always prudent to consider and factor in issues of termination as part of the negotiation and drafting of the contract. The above are, of course, just a sample of some of the practical issues that a company must consider prior to terminating a contract with a PSP. Every situation is unique and each company must unwind all aspects of its existing contractual arrangements, effectively deconstructing the contract to identify what rights and responsibilities a company has to its PSP and vice versa.
Of particular importance to the termination of the PSP contract is the issue of coordination. It is critical that processes are coordinated in order to ensure that there is no gap in the provision of security services. The termination of a PSP contract is not just a matter for a company’s security and legal departments; it also has an impact on other departments, including operations, human resources, and communications.
PSPs are often a source of significant local employment and their operatives are ‘the face’ of a company – patrolling the perimeter of operations and interacting with external parties on a regular basis. Therefore, changing a PSP will inevitably have an impact on a wide range of stakeholders including local communities. It is important for a company to be proactive in the management of its community relations and, to the extent possible, engage communities in terms of the termination and transition of the PSP contract.
Where the PSP itself instigates the termination of the contract, the company should conduct its own assessment of the reasons for such a termination. The company must be particularly vigilant to ensure that the PSP has not chosen to terminate its contract as a result of material threats, abuses or other issues at the operating site and, moreover, has not adequately informed the company of these concerns and issues.
The immediate termination of a PSP contract may put a company and its operators at significant risk if it is not adequately managed. For this reason, it is advisable to conduct contingency planning for such an eventuality, taking into account the issues identified above.
In sum, the effective termination of a PSP contract and subsequent management of the transfer to a new contractor will require coordination between departments and stakeholders. To protect a company from potential risks, these processes, in conjunction with the abovementioned operational issues, must be proactively managed.