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Sunday, 26 October 2008 09:43

BSCAI Expands Its Engagement with the Department of Homeland Security

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IN EARLY 2008, BSCAI INITIATED A DIALOGUE with the department of Homeland Security (dHS) relative to the now well-known issue of illegal subcontracting. With synergies between the business imperatives for legitimate janitorial services and the public policy imperatives of securing the critical infrastructure essential to america’s economic and physical security, this dialogue suggests a long-term partnership between BScai and Homeland Security.


the immigration and customs enforcement (ice), the enforcement arm of Homeland Security, has as a charter mission to investigate the employment of illegal aliens. accordingly, BScai has brought to the agency’s attention the practice of illegal subcontracting. Known to our industry as the practice of improperly designating employees as independent contractors, hiring a properly documented worker but utilizing an undocumented workforce, or hiring illegal or undocumented workers willing or ignorant of the illegality involved, individuals involved in illegal subcontracting are able to signifi cantly undercut the proposals of legitimate building service contractors.

Motivated initially by the business implications of such practices, BScai has continued its dialogue with Homeland Security based on the public policy implications of exposing the nation’s private sector infrastructure to undocumented workers and their criminal principals. these discussions and the partnership they suggest for BScai and Homeland Security have been enabled signifi cantly by the capable attention of the Offi ce of the Private Sector, Policy Directorate, in the department of Homeland Security.


 The employees of janitorial contractors have unique access to the facilities they are contracted to service. they often have access to all areas of the buildings, including mechanical rooms, roof tops, electrical rooms, phone rooms, record keeping, computers and servers, etc.

Othe facility management assigns access based on cleaning assignments, which may limit the exposure of each set of keys or access cards to specifi c areas. Other positions are likely to have access to all areas, such as the supervisor, day porters or matrons, restroom cleaners, working leads and project staff.

This unprecedented access creates risk of insider threat that should be mitigated in order to harden security of sites identifi ed by dHS in the national infrastructure Protection Plan as critical infrastructure and key resources (ci/Kr). the risk is greater in the case of a contractor having a contract to service ci/Kr who operates illegally, primarily with respect to our immigration, employment and tax laws. BScai refers to this as illegal subcontracting, which is often compounded by hiring undocumented workers or workers with documents obtained illegally. this exposure creates a compelling business case for dHS and the private sector to work together.

Considering the various sectors with access to ci/Kr, the janitorial industry has perhaps the most access with the least scrutiny. in review of the HSPd-7 assigned ci/Kr sectors, the janitorial contracting industry at large services 15 of the 17 sectors and typically 12 of the 15 do not require any employment background checks or contractor qualifi cation. Most of the janitorial work is done during non-business hours, which increases the appeal of this access for the purposes of an insider threat.

The insider threat that gains access through the janitorial operations has limited chance of being detected.

Further Discussions and Potential Partnership

BSCAI and the Department of Homeland Security initial discussions have been continued with a keynote presentation by Homeland Security at the Annual Conference in Tampa and later in June at the Government Affairs Committee meeting at BSCAI offices in Washington, D.C. The Committee discussed the value of employee safety and awareness programs and our sector’s experience working in secured locations such as airports. Committee members also reviewed participation in a simulation exercise sponsored jointly by the Joint Real Estate Roundtable, the Department of Homeland Security and the FBI. The Real Estate Roundtable is comprised of senior principals from America's top public and privately owned real estate entities that span every segment of the commercial real estate industry. At the invitation of the Roundtable, BSCAI has also presented the case of engaging reputable building service contractors as part of the overall safeguards for building security. At the meeting, Homeland Security representatives shared a vision of how BSCAI might be involved in the public policy role of protecting the nation’s critical infrastructure while promoting the reputable businesses and members of the association.

Of particular note is Homeland Security’s authority under the SAFETY Act, which provides for the certification of best practices and procedures for products and services that are determined to deter potential terrorist activities. The SAFETY Act can be applied to industry-wide best practices, and the access that building service contractors have to the facilities of sectors identified as Critical Infrastructure, suggests an appealing potential.

As part of the Homeland Security Act of 2002, Public Law 107-296, Congress enacted several liability protections for providers of anti-terrorism technologies. The SAFETY Act (The Support Anti-terrorism by Fostering Effective Technologies Act of 2002) provides incentives for the development and deployment of antiterrorism technologies by creating a system of “risk management” and a system of “litigation management.” The purpose of the Act is to ensure that the threat of liability does not deter potential manufacturer of antiterrorism technologies (or the provision of services) could save lives. The Act creates certain liability limitations for “claims arising out of, relating to, or resulting from an act of terrorism” where qualified antiterrorism technologies and services have been deployed.

Homeland Security recognizes that the universe of technologies that can be deployed against terrorism includes far more than physical products. Therefore, the defense of the homeland will require deployment of a broad range of technologies that includes services, software and other forms of intellectual property. Qualified anti-terrorism technologies have been very broadly defined to include “any qualifying product, equipment, service (including support services), device, or technology. (including information technology)” that the Secretary, as an exercise of discretion and judgment, determines to merit designation under the statutory criteria.

Approved services or best practices must be supported by evidence of the utility, effectiveness and safety of the services (and their results) in future deployments. This will generally include establishing that the service is implemented by a welldocumented and reproducible process, that this process is consistently effective, and that it can be expected to remain effective in future deployments. Any designation or certification that the Department might issue would cover the entire process, as well as any physical products that you deploy in implementing those services.

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