S. 675 — Introduced in Senate

II 113th CONGRESS 1st Session S. 675 IN THE SENATE OF THE UNITED STATES April 9, 2013 Ms. Ayotte (for herself and Mr. Blumenthal) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs A BILL To prohibit contracting with the enemy. 1. Short title This Act may be cited as the Never Contract With the Enemy Act. 2. Prohibition on contracting with the enemy (a) Statement of policy It shall be the policy of the United States that executive agencies shall not contract with the enemy or with a person or entity that has been identified as providing funds received under a contract, grant, or cooperative agreement directly or indirectly to an enemy of the United States or otherwise supporting those who are actively opposing the United States or coalition forces in a contingency operation. (b) Authority To terminate or void contracts, grants, and cooperative agreements and To restrict future award (1) In general Not later than 30 days after the date of the enactment of this Act, the Federal Acquisition Regulation shall be revised to provide that, upon notice from a Senior Procurement Executive or the commander of a geographic combatant command under subsection (e)(3), the head of contracting activity of an executive agency may do the following: (A) If the notice is that a person or entity has been identified as providing funds received under a contract, grant, or cooperative agreement of the executive agency directly or indirectly to an enemy of the United States or a person or entity who is actively supporting an enemy of the United States or otherwise supporting those who are actively opposing United States or coalition forces in a contingency operation— (i) either— (I) terminate for default the contract, grant, or cooperative agreement; or (II) void the contract, grant, or cooperative agreement in whole or in part; and (ii) restrict the future award to the person or entity so identified of contracts, grants, or cooperative agreements of the executive agency. (B) If the notice is that the person or entity has failed to exercise due diligence to ensure that none of the funds received under a contract, grant, or cooperative agreement of the executive entity are provided directly or indirectly to an enemy of the United States or a person or entity who is actively supporting an enemy of the United States or otherwise supporting those who are actively opposing United States or coalition forces in a contingency operation, terminate for default the contract, grant, or cooperative agreement. (2) Treatment as void For purposes of this section: (A) A contract, grant, or cooperative agreement that is void is unenforceable as contrary to public policy. (B) A contract, grant, or cooperative agreement that is void in part is unenforceable as contrary to public policy with regard to a segregable task or effort under the contract, grant, or cooperative agreement. (c) Contract clause (1) In general Not later than 30 days after the date of the enactment of this Act, the Federal Acquisition Regulation shall be revised to require that— (A) the clause described in paragraph (2) shall be included in each covered contract, grant, and cooperative agreement of an executive agency that is awarded on or after the date of the enactment of this Act; and (B) to the maximum extent practicable, each covered contract, grant, and cooperative agreement of an executive agency that is awarded before the date of the enactment of this Act shall be modified to include the clause described in paragraph (2), other than the matter provided for in subparagraph (A) of that paragraph. (2) Clause described The clause described in this paragraph is a clause that— (A) requires the contractor, or the recipient of the grant or cooperative agreement, to certify in connection with entry into the contract, grant, or cooperative agreement that the contractor or recipient, as the case may be, has never knowingly provided funds directly or indirectly to an enemy of the United States or a person or entity who is actively supporting an enemy of the United States or otherwise knowingly supported those who are actively opposing United States or coalition forces in a contingency operation; (B) requires the contractor, or the recipient of the grant or cooperative agreement, to exercise due diligence to ensure that none of the funds received under the contract, grant, or cooperative agreement are provided directly or indirectly to an enemy of the United States or a person or entity who is actively supporting an enemy of the United States or otherwise supporting those who are actively opposing United States or coalition forces in a contingency operation; and (C) notifies the contractor, or the recipient of the grant or cooperative agreement, of the authority of the head of the contracting activity to terminate or void the contract, grant, or cooperative agreement, in whole or in part, as provided in subsection (b). (3) Covered contract, grant, or cooperative agreement In this subsection, the term covered contract, grant, or cooperative agreement means a contract, grant, or cooperative agreement with an estimated value in excess of $20,000. (d) Requirements following contract actions Not later than 30 days after the date of the enactment of this Act, the Federal Acquisition Regulation shall be revised as follows: (1) To require that any head of contracting activity taking an action under subsection (b) to terminate, void, or restrict a contract, grant, or cooperative agreement notify in writing the contractor or recipient of the grant or cooperative agreement, as applicable, of the action. (2) To permit, in such manner as the Federal Acquisition Regulation as so revised shall provide, the contractor or recipient of a grant or cooperative agreement subject to an action taken under subsection (b) to terminate or void the contract, grant, or cooperative agreement, as the case may be, an opportunity to contest the action within 30 days of receipt of notice of the action. (e) Identification of supporters of the enemy (1) Identification Not later than 30 days after the date of the enactment of this Act, the Secretary of Defense and each Senior Procurement Executive shall carry out a program to use available intelligence (including information made available pursuant to subsection (g)(1)) to— (A) either— (i) in the case of the geographic combatant commands, review persons and entities who receive United States funds through contracts, grants, and cooperative agreements performed for such commands in their areas of responsibility; or (ii) in the case of the Senior Procurement Executives, review persons and entities who receive United States funds through contracts, grants, and cooperative agreements performed for their agencies; and (B) identify any such persons and entities who are providing funds received under a contract, grant, or cooperative agreement of an executive agency directly or indirectly to an enemy of the United States or a person or entity who is actively supporting an enemy of the United States or otherwise supporting those who are actively opposing United States or coalition forces in a contingency operation. (2) Discharge by DoD through commanders of combatant commands The Secretary of Defense shall carry out the program required by paragraph (1) through the commanders of the geographic combatant commands. (3) Notification of contracting activities If a Senior Procurement Executive or the commander of a geographic combatant command, acting pursuant to a program required by paragraph (1), identifies a person or entity as actively supporting an enemy of the United States or otherwise supporting those who are actively opposing United States or coalition forces in a contingency operation, the Senior Procurement Executive or commander, as the case may be, shall notify the heads of contracting activities of the executive agencies in writing of such identification. Any written notification pursuant to this paragraph shall be made in accordance with procedures established to implement the revisions to the Federal Acquisition Regulation required by this section. (4) Annual review As part of the programs required by paragraph (1), the Senior Procurement Executives and the commanders of the geographic combatant commands shall, on an annual basis, review the lists of persons and entities previously covered by a notice under paragraph (3) as having been identified pursuant to paragraph (1)(B) in order to determine whether or not such persons and entities continue to warrant identification pursuant to paragraph (1)(B). If a Senior Procurement Executive or commander determines pursuant to such a review that a person or entity no longer warrants identification pursuant to paragraph (1)(B), the Senior Procurement Executive or commander, as the case may be, shall notify the heads of contracting activities of the executive agencies in writing of such determination. (5) Protection of classified information Classified information relied upon to make an identification in accordance with this subsection may not be disclosed to a contractor or a recipient of a grant or cooperative agreement with respect to which an action is taken pursuant to the authority provided in subsection (b), or to their representatives, in the absence of a protective order issued by a court of competent jurisdiction established under Article I or Article III of the Constitution of the United States that specifically addresses the conditions upon which such classified information may be so disclosed. (f) Delegation of certain responsibilities (1) Responsibility to identify and provide notice A Senior Procurement Executive may delegate the responsibilities in paragraphs (1), (3), and (4) of subsection (e) to the designated deputy of such Executive. The commander of a geographic combatant command may delegate the responsibilities in such paragraphs to the deputy commander of that combatant command. Any delegation of responsibilities under this paragraph shall be made in writing. (2) Nondelegation of responsibility for contract actions The authority provided by subsection (b) to terminate, void, or restrict contracts, grants, and cooperative agreements may not be delegated below the level of head of contracting activity. (g) Additional responsibilities of executive agencies (1) Dissemination of information on supporters of the enemy The Secretary of Defense and the Administrator for Federal Procurement Policy shall jointly carry out a program through which the contracting activities of the executive agencies may provide information to Senior Procurement Executives and the commanders of the geographic combatant commands relating to persons or entities who may be providing funds received under contracts, grants, or cooperative agreements of the executive agencies directly or indirectly to an enemy of the United States or a person or entity who is actively supporting an enemy of the United States or otherwise supporting those who are actively opposing United States or coalition forces in a contingency operation. The program shall be designed to facilitate and encourage the sharing of information between executive agencies and the geographic combatant commands. (2) Inclusion of information on contract actions in FAPIIS Upon the termination, voiding, or restriction of a contract, grant, or cooperative agreement of an executive agency under subsection (b), the head of contracting activity of the executive agency shall provide for the inclusion in the Federal Awardee Performance and Integrity Information System (FAPIIS), or other formal system of records on contractors or entities, of appropriate information on the termination, voiding, or restriction, as the case may be, of the contract, grant, or cooperative agreement. (3) Reports The head of contracting activity that receives a notice pursuant to subsection (e)(3) shall submit to the Senior Procurement Executives and the commanders of the geographic combatant commands a report on the action, if any, taken by the head of contracting activity pursuant to subsection (b), including a determination not to terminate, void, or restrict the contract, grant, or cooperative agreement as otherwise authorized by subsection (b). (h) Reports (1) In general Not later than March 1 each year, the Secretary of Defense shall, in consultation with the heads of other executive agencies, submit to the appropriate committees of Congress a report on the use of the authorities in this section in the preceding calendar year, including the following: (A) For each instance in which an executive agency exercised the authority to terminate, void, or restrict a contract, grant, and cooperative agreement pursuant to subsection (b), the following: (i) The executive agency taking such action. (ii) An explanation of the basis for the action taken. (iii) The value of the contract, grant, or cooperative agreement voided or terminated. (iv) The value of all contracts, grants, or cooperative agreements of the executive agency in force with the person or entity concerned at the time the contract, grant, or cooperative agreement was terminated or voided. (B) For each instance in which an executive agency did not exercise the authority to terminate, void, or restrict a contract, grant, and cooperative agreement pursuant to subsection (b) as requested pursuant to subsection (e)(3), the following: (i) The executive agency concerned. (ii) An explanation why the action was not taken. (2) Form Any report under this subsection may be submitted in classified form. (i) Other definitions In this section: (1) The term appropriate committees of Congress means— (A) the Committee on Armed Services, the Committee on Homeland Security and Governmental Affairs, and the Committee on Appropriations of the Senate; and (B) the Committee on Armed Services, the Committee on Oversight and Government Reform, and the Committee on Appropriations of the House of Representatives. (2) The term combatant command means a command established pursuant to chapter 6 of title 10, United States Code. (3) The term contingency operation has the meaning given that term in section 101(a)(13) of title 10, United States Code. (4) The term enemy of the United States means any of the following: (A) Any person or organization determined by the Secretary of Defense or the Secretary of State to be hostile to United States forces or interests or providing support to any person or organization hostile to United States forces or interests during the time of a declared war, peacekeeping operation, or other military or contingency operation. (B) Any organization designated as a terrorist organization under section 219(a) of the Immigration and Nationality Act (8 U.S.C. 1189(a)). (5) The term executive agency has the meaning given that term in section 133 of title 41, United States Code. (6) The term head of contracting activity has the meaning given that term in subpart 601 of part 1 of the Federal Acquisition Regulation. (7) The term Senior Procurement Executive has the meaning given that term in section 1702 of title 41, United States Code. (j) Coordination with current authorities applicable to CENTCOM (1) Repeal of superseded authority Effective 30 days after the date of the enactment of this Act, section 841 of the National Defense Authorization Act for Fiscal Year 2012 (Public Law 112–81; 125 Stat. 1510; 10 U.S.C. 2302 note) is repealed. (2) Use of superseded authorities in discharge of requirements In providing for the discharge of the requirements of this section by the Department of Defense, the Secretary of Defense may use and modify for that purpose requirements and procedures established by the Secretary for purposes of the discharge of the requirements of section 841 of the National Defense Authorization Act for Fiscal Year 2012.