IN THE SENATE OF THE UNITED STATES
February 10, 2015
Mr. Tester (for himself, Mrs. McCaskill, and Mr. Vitter) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs
To strengthen the accountability of individuals involved in misconduct affecting the integrity of background investigations, to update guidelines for security clearances, to prevent conflicts of interest relating to contractors providing background investigation fieldwork services and investigative support services, and for other purposes.
This Act may be cited as the
Security Clearance Accountability, Reform, and Enhancement Act of 2015.
Table of contents
The table of contents for this Act is as follows:
Sec. 1. Short title.
Sec. 2. Table of contents.
TITLE I—Security clearance accountability, reform, and enhancement
Sec. 101. Definitions.
Sec. 102. Accountability of individuals involved in misconduct affecting the integrity of agency background investigations.
Sec. 103. Review and update of position designation guidance.
TITLE II—Preventing conflicts of interest with contractors
Sec. 201. Definitions.
Sec. 202. Limitation on contracting to prevent organizational conflicts of interest.
Security clearance accountability, reform, and enhancement
In this title—
the term agency has the meaning given the term in Executive Order 13467 (73 Fed. Reg. 38103), or any successor thereto;
the term appropriate agency means—
in the case of a prime contractor for a covered contract, the agency with which the prime contractor entered the covered contract; or
in the case of a subcontractor for a covered contract, any agency on whose behalf the subcontractor is performing work under the covered contract;
the term appropriate congressional committees means—
the Committee on Homeland Security and Governmental Affairs and the Select Committee on Intelligence of the Senate; and
the Committee on Oversight and Government Reform and the Permanent Select Committee on Intelligence of the House of Representatives;
the term background investigation means any investigation required for the purpose of determining the—
eligibility of a covered individual for logical and physical access to federally controlled facilities or information systems;
suitability or fitness of a covered individual for Federal employment;
eligibility of a covered individual for access to classified information or to hold a national security sensitive position; or
fitness of a covered individual to perform work for or on behalf of the United States Government as a contractor employee;
the term covered contract means a contract to conduct background investigations—
between an agency and a prime contractor;
between a prime contractor and a subcontractor, if the prime contractor has a contract with an agency; or
between subcontractors, if one of the subcontractors has a contract with a prime contractor that has a contract with an agency;
the term covered individual means an individual who—
performs work for or on behalf of an agency; or
seeks to perform work for or on behalf of an agency;
the term covered misconduct means misconduct affecting the integrity of a background investigation conducted by or for an agency with investigative authority to conduct background investigations, including—
falsification of any information relating to a background investigation; or
other serious misconduct that compromises the integrity of a background investigation;
the term prime contractor means an individual who enters into a contract with an agency; and
the term subcontractor means an individual who has contracted with a prime contractor or with another subcontractor to perform a contract on behalf of an agency.
Accountability of individuals involved in misconduct affecting the integrity of agency background investigations
Misconduct by Federal employees
Unfit for Federal employment
If an agency determines that an employee of the agency has engaged in covered misconduct, the employee shall be found unfit for Federal employment.
An agency shall make a determination under paragraph (1) in accordance with any statutory, regulatory, or internal agency procedures applicable to investigating alleged misconduct by employees of the agency.
Prohibition on reemployment to conduct background investigations
If an agency determines under paragraph (1) that an individual is unfit for Federal employment, the individual shall not be appointed to or continue to occupy a position, as an employee of any agency, that requires its occupant to perform background investigations.
Misconduct by employees under contract
Ineligibility for performance of work under a covered contract
If an appropriate agency, prime contractor, or subcontractor determines that an individual performing work under a covered contract has engaged in covered misconduct, the individual shall be ineligible to perform background investigations under a covered contract.
A covered contract shall include a provision requiring a prime contractor or subcontractor to disclose to each appropriate agency any allegation of covered misconduct by an employee of the prime contractor or subcontractor not later than 24 hours after the prime contractor or subcontractor discovers the alleged covered misconduct.
Investigation of covered misconduct
A covered contract shall include a provision requiring that, not later than 5 business days after the date on which a prime contractor or subcontractor discloses an allegation under paragraph (2), the prime contractor or subcontractor shall refer the allegation of covered misconduct to the agency for investigation.
Nothing in subparagraph (A) shall be construed to prohibit an appropriate agency from conducting its own investigation into an allegation of covered misconduct.
Prohibition on reemployment to conduct background investigations
If an appropriate agency determines, based on an investigation conducted under paragraph (3), that an individual is ineligible to perform work under a covered contract under paragraph (1), the individual shall be prohibited from performing background investigations under any covered contract.
Modification of existing contracts
Not later than 30 days after the date of enactment of this Act, any covered contract that is in effect and was entered into before the date of enactment of this Act shall be modified to include the provisions required under paragraphs (2) and (3).
Not later than 1 year after the date of enactment of this Act, and annually thereafter, the President shall submit to the appropriate congressional committees a report providing—
the number of individuals determined to be—
unfit for Federal employment under subsection (a); or
ineligible to perform work under a covered contract under subsection (b); and
details of the covered misconduct that resulted in each determination described in paragraph (1).
Review and update of position designation guidance
Initial review and update of guidance
Not later than 180 days after the date of enactment of this Act, the President shall review and, if appropriate, update the guidance the President issues to assist agencies in determining—
position sensitivity designation; and
the appropriate background investigation to initiate for each position designation.
Reviews and revisions of position designations
Not less frequently than every 5 years, the President, acting through relevant agencies (as determined by the President) and in accordance with the guidance described in paragraph (1), shall review and, if necessary, revise the position designation of positions within agencies.
Reports to Congress
Not later than 30 days after completing a review under subsection (a)(2), the President shall submit to the appropriate congressional committees a report on—
any issues identified in the review; and
the number of position designations revised as a result of the review.
No change in authority
Nothing in this section limits or expands the authority of any agency to designate a position as sensitive or as requiring its occupant to have access to classified information.
Preventing conflicts of interest with contractors
In this title—
the term agency means—
an Executive agency (as defined in section 105 of title 5, United States Code);
a military department (as defined in section 102 of title 5, United States Code);
an element of the intelligence community (as that term is defined in section 3 of the National Security Act of 1947 (50 U.S.C. 3003));
the United States Postal Service; and
the Postal Regulatory Commission;
the term background investigation fieldwork services means the investigatory fieldwork conducted to determine the eligibility of an individual for logical and physical access to federally controlled facilities or information systems, suitability or fitness for Federal employment, eligibility for access to classified information or to hold a national security sensitive position, or fitness to perform work for or on behalf of the Federal Government as a contractor or employee, including—
interviews of the individual, the employer of the individual, former employers of the individual, and friends, family, and other sources who might have relevant knowledge of the individual; and
educational and employment records;
criminal and other legal records; and
the term background investigation support services means the clerical, administrative, and technical support services provided to various functions critical to the background investigation process, including—
initial processing and scheduling of investigative requests;
information technology and information technology support;
imaging or copying of investigation documents; and
mail processing; and
the term quality review process means performing the final quality review of a background investigation to ensure investigative, administrative, and other required standards have been met before the completed background investigation is delivered to the adjudicating agency.
Limitation on contracting to prevent organizational conflicts of interest
Notwithstanding any other provision of law, after the date of enactment of this Act, a contract may not be entered into, and an extension of or option on a contract may not be exercised, with a contractor to conduct a quality review process relating to background investigation fieldwork services or background investigation support services if the contractor is performing the services to be reviewed.