IN THE SENATE OF THE UNITED STATES
February 14, 2011
Mr. Brown of Massachusetts (for himself and Ms. Ayotte) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs
To require the rescission or termination of Federal contracts and subcontracts with enemies of the United States.
This Act may be cited as
No Contracting with the Enemy Act
In this Act:
Element of the Intelligence Community
The term element of the intelligence community means an element of the intelligence community specified or designated in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)).
Enemy of the United States
The term enemy of the United States means 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.
The term executive agency has the meaning given the term in section 133 of title 41, United States Code.
Federal Acquisition Regulation
The term Federal Acquisition Regulation means the regulation maintained under section 1303(a)(1) of title 41, United States Code.
The term Federal contract means any contract, including any order under a multiple award or indefinite delivery or indefinite quality contract, entered into by an executive agency for the procurement of property or services.
Prohibition on contracts with enemies
Not later than 60 days after the date of the enactment of this Act, the Federal Acquisition Regulatory Council shall amend the Federal Acquisition Regulation—
to prohibit the awarding of Federal contracts to enemies of the United States; and
to provide that any Federal contract with an enemy of the United States shall be null and void and may be immediately terminated or rescinded by the head of the executive agency concerned at no cost to the United States Government, including any compensation otherwise due under termination for convenience, termination for default, or other contract provisions or provisions of law.
Prohibition on subcontracts
The regulations prescribed under subsection (a) shall prohibit the awarding of subcontracts under a Federal contract to enemies of the United States, and shall include the following requirements:
Federal contracts shall include a contract clause prohibiting the use of a subcontractor at any tier under the contract that is an enemy of the United States.
If the head of an executive agency determines that a prime contractor has subcontracted at any tier under a Federal contract with a contractor that is an enemy of the United States, the contracting official shall—
direct the prime contractor to terminate the subcontract immediately with no further payment or compensation to the subcontractor;
notify the prime contractor that failure to terminate the subcontract shall be grounds for default on the prime contract; and
take all necessary actions to ensure that no further payments, including previously approved payments and compensation otherwise due under termination for convenience, termination for default, or other contract provisions or provisions of law, are made to the subcontractor.
Intelligence community and national security exception
The prohibitions under subsections (a) and (b) shall not apply to contracts entered into by elements of the intelligence community in support of intelligence activities or any other contract where national security may be compromised.
Monitoring of terminated contracts
later than 90 days after the date of the enactment of this Act, the
Administrator for Federal Procurement Policy shall direct the Administrator of
General Services to add a field to the Federal Awardee Performance and
Integrity Information System (
FAPIIS) to record contracts voided
or otherwise terminated based on a determination that the contract, or any
subcontract under the contract, was with an enemy of the United States as
defined under section 2(1).
The Administrator for Federal Procurement Policy, in coordination with the Secretary of Defense and the Secretary of State, shall ensure that the regulations implementing this Act are disseminated to all personnel affected and that all contractors are made aware of this policy prior to contract awards.
Determination of Enemy Status
Not later than 60 days after the date of the enactment of this Act, the Secretary of Defense, in coordination with the Secretary of State, shall prescribe regulations establishing a process for the heads of executive agencies to make a determination that a party to a contract is an enemy of the United States as defined under section 2(1).
The regulations prescribed under paragraph (1) shall establish—
a process for verifying the information on which a determination under such paragraph is sufficiently reliable;
a process for protecting confidential sources;
a process requiring the heads of executive agencies to document the basis for determinations under paragraph (1) and the information relied upon in making such determinations; and
a process for retaining such information for possible review under section 5.
Due process procedure
Any contractor whose contract is voided or otherwise terminated under the procedures prescribed pursuant to section 3 may utilize the procedures established under chapter 71 of title 41, United States Code, except that the only basis for a claim under these procedures is that the contractor is not an enemy of the United States as defined under section 2(1).
Protection of National Security
The regulations established under chapter 71 of title 41, United States Code, shall be amended to provide for the protection of national security as appropriate when a claim is submitted under subsection (a).
This Act and the amendments made pursuant to this Act shall apply with respect to contracts entered into on or after the date of the enactment of this Act.