States, IOs, humanitarian organisations and NGOs are increasingly hiring PMSCs to support their security, especially in situations of armed conflict or post-conflict environments. The role of clients is fundamental, as commercial incentives and restrictions imposed in the contract can further compel private military and/or security providers to adhere to relevant human rights regulations and IHL obligations. Contracts can be a powerful tool to reinforce high standards yet there is little shared information and experience to support formulating contracts that ensure respect with these principles and rules. On this basis, guidance on best practices in contracting of PMSCs is required.

Furthermore, very often the selection of a potential contractor is exclusively based on the ‘lowest price’ criteria. However, relying solely on the lowest price can also be harmful to a client’s reputation and can lead to lower standards in the industry in general. Once a PMSC is hired, the behaviour and profile of the company and its personnel may also be associated with the client’s image. Reputational risks can also be mitigated with a contracting process which includes effective screening and vetting procedures.

The Contract Guidance Tool draws on leading international norms and standards to reflect the principles of responsible procurement and contracting practices, and provides clear and practical guidelines for actors with roles in these processes. By translating knowledge and research into a practical and easy-to-use format, the Contract Guidance Tool will provide implementation support for those actors drafting, implementing, and monitoring contracts with PMSCs.

This Tool is intended to support states, IOs, humanitarian organisations, and NGOs in their processes of contracting PMSCs. This Tool may also be instructive for private clients of PMSCs; however, the details of this relationship will not be explored in this document.

More specifically, this Tool is aimed at the individual actors working within these institutions: the security officers, the administrators, or other individuals responsible for the contracting of private military and/or security services. These contracting officers work within a government or an organisation’s responsible authority or agency (see definition) with the mandate and capacity for developing tenders, selecting and assessing contractors, and implementing and overseeing contracts with PMSCs.

This Guidance Tool is composed of two distinct sections. Each section has an explanatory note, followed by a practical Guidance Tool (checklist/template) to assist in the stage of contracting.

PART 1 covers the bidding and selection process: including the development and publication of the request for proposals (RfP) and the selection of potential contractors. Part 1 is complemented by a checklist that the user can consult when undertaking a bidding and selection process of potential PSMC contractors.

PART 2 offers guidance on the drafting of the contract itself. This section contains an explanatory note and a model contract that reflects internationally recognised good practices, which can be adapted by the client as appropriate to context and needs.

Not all sections will be relevant to all actors or to all situations; it will be up to the client to assess the concrete applicability of the different elements of the Tool. Some sections also refer to states’ obligations under IHRL and IHL, which might not be compulsory for other types of clients of PMSCs. This Tool nevertheless represents recommended good practices reflecting international standards.

The Geneva Centre for the Democratic Control of Armed Forces (DCAF) is an international foundation whose mission is to assist the international community in pursuing good governance and reform of the security sector. The Centre provides in country advisory support and practical assistance programmes, develops and promotes norms and standards, conducts tailored policy research and identifies good practices and recommendations to promote democratic security sector governance.

businessandsecurity.dcaf.ch
P.O. Box 1360
CH-1211 Geneva
Switzerland

The authors would like to express gratitude to the range of different individuals, states, and organisations who have contributed feedback and expert review. The development of this Tool is made possible by the generous support of the Swiss Federal Department of Foreign Affairs, Directorate of International Law.

The contents of this publication may be freely used and copied for education and other non commercial purposes, provided that any such reproduction is accompanied by an acknowledgement of the DCAF Guidance Tool for Contracting Private Military and Security Services (PMSCs) as the source. The views expressed in this publication are those of the author(s) alone.

This Guidance Tool does not provide legal advice and is not a legal document. The purpose of this document is to offer states, international organisations, humanitarian non-governmental organisations, and other actors as clients of PMSCs with practical guidance on how to structure contracts and contracting procedures in for PMSC services. In keeping with its intent of providing practical guidance, this document is not a legal manual. The responsibility to obtain appropriate legal advice when developing contracts with PMSCs rests with the parties to the contract.