II 

109TH CONGRESS 

2D SESSION S. 2361 

To improve Federal contracting and procurement by eliminating fraud and 

abuse and improving competition in contracting and procurement and 

by enhancing administration of Federal contracting personnel, and for 

other purposes. 

IN THE SENATE OF THE UNITED STATES 

MARCH 2, 2006 

Mr. DORGAN (for himself, Mr. BINGAMAN, Mrs. BOXER, Mr. CARPER, Mrs. 

CLINTON, Mr. DAYTON, Mr. DURBIN, Mr. FEINGOLD, Mrs. FEINSTEIN, 

Mr. HARKIN, Mr. JOHNSON, Mr. KENNEDY, Mr. KERRY, Ms. LANDRIEU, 

Mr. LAUTENBERG, Mr. LEAHY, Mr. MENENDEZ, Ms. MIKULSKI, Mr. 

OBAMA, Mr. PRYOR, Mr. REID, Mr. ROCKEFELLER, Mr. SALAZAR, Ms. 

STABENOW, Mr. WYDEN, Mr. KOHL, Mr. SCHUMER, and Mr. NELSON of 

Florida) introduced the following bill; which was read twice and referred 

to the Committee on Homeland Security and Governmental Affairs 

A BILL 

To improve Federal contracting and procurement by eliminating fraud and abuse and improving competition in 

contracting and procurement and by enhancing administration of Federal contracting personnel, and for other 

purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Honest Leadership and 

3 Accountability in Contracting Act of 2006’’. 

4 TITLE I—ELIMINATION OF 

5 FRAUD AND ABUSE 

6 SEC. 101. PROHIBITION OF WAR PROFITEERING AND 

7 FRAUD. 

8 (a) PROHIBITION.— 

9 (1) IN GENERAL.—Chapter 47 of title 18, 

10 United States Code, is amended by adding at the 

11 end the following: 

12 ‘‘§ 1039. War profiteering and fraud 

13 ‘‘(a) PROHIBITION.— 

14 ‘‘(1) IN GENERAL.—Whoever, in any matter in15 volving a contract or the provision of goods or serv16 ices, directly or indirectly, in connection with a war 

17 or military action knowingly and willfully— 

18 ‘‘(A) executes or attempts to execute a 

19 scheme or artifice to defraud the United States 

20 or the entity having jurisdiction over the area 

21 in which such activities occur; 

22 ‘‘(B) falsifies, conceals, or covers up by 

23 any trick, scheme, or device a material fact; 

24 ‘‘(C) makes any materially false, fictitious, 

25 or fraudulent statements or representations, or 

26 makes or uses any materially false writing or 


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1 document knowing the same to contain any ma2 terially false, fictitious, or fraudulent statement 

3 or entry; or 

4 ‘‘(D) materially overvalues any good or 

5 service with the specific intent to excessively 

6 profit from the war or military action; 

7 shall be fined under paragraph (2), imprisoned not 

8 more than 20 years, or both. 

9 ‘‘(2) FINE.—A person convicted of an offense 

10 under paragraph (1) may be fined the greater of— 

11 ‘‘(A) $1,000,000; or 

12 ‘‘(B) if such person derives profits or other 

13 proceeds from the offense, not more than twice 

14 the gross profits or other proceeds. 

15 ‘‘(b) EXTRATERRITORIAL JURISDICTION.—There is 

16 extraterritorial Federal jurisdiction over an offense under 

17 this section. 

18 ‘‘(c) VENUE.—A prosecution for an offense under 

19 this section may be brought— 

20 ‘‘(1) as authorized by chapter 211 of this title; 

21 ‘‘(2) in any district where any act in further22 ance of the offense took place; or 

23 ‘‘(3) in any district where any party to the con24 tract or provider of goods or services is located.’’. 


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1 (2) CLERICAL AMENDMENT.—The table of sec2 tions for chapter 47 of title 18, United States Code, 

3 is amended by adding at the end the following: 

‘‘1039. War profiteering and fraud.’’. 

4 (b) CIVIL FORFEITURE.—Section 981(a)(1)(C) of 

5 title 18, United States Code, is amended by inserting 

6 ‘‘1039,’’ after ‘‘1032,’’. 

7 (c) CRIMINAL FORFEITURE.—Section 982(a)(2)(B) 

8 of title 18, United States Code, is amended by striking 

9 ‘‘or 1030’’ and inserting ‘‘1030, or 1039’’. 

10 (d) TREATMENT UNDER MONEY LAUNDERING OF11 FENSE.—Section 1956(c)(7)(D) of title 18, United States 

12 Code, is amended by inserting the following: ‘‘, section 

13 1039 (relating to war profiteering and fraud)’’ after ‘‘liq14 uidating agent of financial institution),’’. 

15 SEC. 102. SUSPENSION AND DEBARMENT OF UNETHICAL 

16 CONTRACTORS. 

17 (a) IN GENERAL.—Not later than 90 days after the 

18 date of enactment of this Act, the Federal Acquisition 

19 Regulation issued pursuant to section 25 of the Office of 

20 Federal Procurement Policy Act (41 U.S.C. 421) shall be 

21 revised to provide that no prospective contractor shall be 

22 considered to have a satisfactory record of integrity and 

23 business ethics if it— 

24 (1) has exhibited a pattern of overcharging the 

25 Government under Federal contracts; or 


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1 (2) has exhibited a pattern of failing to comply 

2 with the law, including tax, labor and employment, 

3 environmental, antitrust, and consumer protection 

4 laws. 

5 (b) EFFECTIVE DATE.—The revised regulation re6 quired by this section shall apply with respect to all con7 tracts for which solicitations are issued after the date that 

8 is 90 days after the date of the enactment of this Act. 

9 SEC. 103. DISCLOSURE OF AUDIT REPORTS. 

10 (a) DISCLOSURE OF INFORMATION TO CONGRESS.— 

11 (1) IN GENERAL.—The head of each executive 

12 agency shall maintain a list of audit reports issued 

13 by the agency during the current and previous cal14 endar years that— 

15 (A) describe significant contractor costs 

16 that have been identified as unjustified, unsup17 ported, questioned, or unreasonable under any 

18 contract, task or delivery order, or subcontract; 

19 or 

20 (B) identify significant or substantial defi21 ciencies in any business system of any con22 tractor under any contract, task or delivery 

23 order, or subcontract. 

24 (2) SUBMISSION OF INDIVIDUAL AUDITS.—The 

25 head of each executive agency shall provide, within 


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1 14 days of a request in writing by the chairman or 

2 ranking member of a committee of jurisdiction, a 

3 full and unredacted copy of— 

4 (A) the current version of the list main5 tained pursuant to paragraph (1); or 

6 (B) any audit or other report identified on 

7 such list. 

8 (b) PUBLICATION OF INFORMATION ON FEDERAL

9 CONTRACTOR PENALTIES AND VIOLATIONS.— 

10 (1) IN GENERAL.—Not later than 180 days 

11 after the date of the enactment of this Act, the Fed12 eral Procurement Data System shall be modified to 

13 include— 

14 (A) information on instances in which any 

15 major contractor has been fined, paid penalties 

16 or restitution, settled, plead guilty to, or had 

17 judgments entered against it in connection with 

18 allegations of improper conduct; and 

19 (B) information on all sole source contract 

20 awards in excess of $2,000,000 entered into by 

21 an executive agency. 

22 (2) PUBLICLY AVAILABLE WEBSITE.—The in23 formation required by paragraph (1) shall be made 

24 available through the publicly available website of 

25 the Federal Procurement Data System. 


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1 TITLE II—CONTRACT MATTERS 

2 Subtitle A—Competition in 

3 Contracting 

4 SEC. 201. PROHIBITION ON AWARD OF MONOPOLY CON5 TRACTS. 

6 (a) CIVILIAN AGENCY CONTRACTS.—Section 

7 303H(d) of the Federal Property and Administrative 

8 Services Act of 1949 (41 U.S.C. 253h(d)) is amended by 

9 adding at the end the following new paragraph: 

10 ‘‘(4)(A) No task or delivery order contract in an 

11 amount estimated to exceed $100,000,000 (including all 

12 options) may be awarded to a single contractor unless the 

13 head of the agency determines in writing that— 

14 ‘‘(i) because of the size, scope, or method of 

15 performance of the requirement, it would not be 

16 practical to award multiple task or delivery order 

17 contracts; 

18 ‘‘(ii) the task orders expected under the con19 tract are so integrally related that only a single con20 tractor can reasonably perform the work; or 

21 ‘‘(iii) for any other reason, it is necessary in the 

22 public interest to award the contract to a single con23 tractor. 


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1 ‘‘(B) The head of the agency shall notify Congress 

2 within 30 days of any determination under subparagraph 

3 (A)(iii).’’. 

4 (b) DEFENSE CONTRACTS.—Section 2304a(d) of title 

5 10, United States Code, is amended by adding at the end 

6 the following new paragraph: 

7 ‘‘(4)(A) No task or delivery order contract in an 

8 amount estimated to exceed $100,000,000 (including all 

9 options) may be awarded to a single contractor unless the 

10 head of the agency determines in writing that— 

11 ‘‘(i) because of the size, scope, or method of 

12 performance of the requirement, it would not be 

13 practical to award multiple task or delivery order 

14 contracts; 

15 ‘‘(ii) the task orders expected under the con16 tract are so integrally related that only a single con17 tractor can reasonably perform the work; or 

18 ‘‘(iii) for any other reason, it is necessary in the 

19 public interest to award the contract to a single con20 tractor. 

21 ‘‘(B) The head of the agency shall notify Congress 

22 within 30 days of any determination under subparagraph 

23 (A)(iii).’’. 


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1 SEC. 202. COMPETITION IN MULTIPLE AWARD CONTRACTS. 

2 (a) REGULATIONS REQUIRED.—Not later than 180 

3 days after the date of the enactment of this section, the 

4 Federal Acquisition Regulation shall be revised to require 

5 competition in the purchase of goods and services by each 

6 executive agency pursuant to multiple award contracts. 

7 (b) CONTENT OF REGULATIONS.—(1) The regula8 tions required by subsection (a) shall provide, at a min9 imum, that each individual purchase of goods or services 

10 in excess of $1,000,000 that is made under a multiple 

11 award contract shall be made on a competitive basis unless 

12 a contracting officer of the executive agency— 

13 (A) waives the requirement on the basis of a 

14 determination that— 

15 (i) one of the circumstances described in 

16 paragraphs (1) through (4) of section 303J(b) 

17 of the Federal Property and Administrative 

18 Services Act of 1949 (41 U.S.C. 253j(b)) ap19 plies to such individual purchase; or 

20 (ii) a statute expressly authorizes or re21 quires that the purchase be made from a speci22 fied source; and 

23 (B) justifies the determination in writing. 

24 (2) For purposes of this subsection, an individual 

25 purchase of goods or services is made on a competitive 

26 basis only if it is made pursuant to procedures that— 


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1 (A) require fair notice of the intent to make 

2 that purchase (including a description of the work to 

3 be performed and the basis on which the selection 

4 will be made) to be provided to all contractors offer5 ing such goods or services under the multiple award 

6 contract; and 

7 (B) afford all contractors responding to the no8 tice a fair opportunity to make an offer and have 

9 that offer fairly considered by the official making 

10 the purchase. 

11 (3) Notwithstanding paragraph (2), notice may be 

12 provided to fewer than all contractors offering such goods 

13 or services under a multiple award contract described in 

14 subsection (c)(2)(A) if notice is provided to as many con15 tractors as practicable. 

16 (4) A purchase may not be made pursuant to a notice 

17 that is provided to fewer than all contractors under para18 graph (3) unless— 

19 (A) offers were received from at least three 

20 qualified contractors; or 

21 (B) a contracting officer of the executive agency 

22 determines in writing that no additional qualified 

23 contractors were able to be identified despite reason24 able efforts to do so. 

25 (c) DEFINITIONS.—In this section: 


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1 (1) The term ‘‘individual purchase’’ means a 

2 task order, delivery order, or other purchase. 

3 (2) The term ‘‘multiple award contract’’ 

4 means— 

5 (A) a contract that is entered into by the 

6 Administrator of General Services under the 

7 multiple award schedule program referred to in 

8 section 309(b)(3) of the Federal Property and 

9 Administrative Services Act of 1949 (41 U.S.C. 

10 259(b)(3)); 

11 (B) a multiple award task order contract 

12 that is entered into under the authority of sec13 tions 2304a through 2304d of title 10, United 

14 States Code, or sections 303H through 303K of 

15 the Federal Property and Administrative Serv16 ices Act of 1949 (41 U.S.C. 253h through 

17 253k); and 

18 (C) any other indefinite delivery, indefinite 

19 quantity contract that is entered into by the 

20 head of an executive agency with two or more 

21 sources pursuant to the same solicitation. 

22 (d) APPLICABILITY.—The revisions to the Federal 

23 Acquisition Regulation pursuant to subsection (a) shall 

24 take effect not later than 180 days after the date of the 

25 enactment of this Act, and shall apply to all individual 


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1 purchases of goods or services that are made under mul2 tiple award contracts on or after the effective date, with3 out regard to whether the multiple award contracts were 

4 entered into before, on, or after such effective date. 

5 (e) CONFORMING AMENDMENTS TO DEFENSE CON6 TRACT PROVISION.—Section 803 of the National Defense 

7 Authorization Act for Fiscal Year 2002 (Public Law 107– 

8 107; 10 U.S.C. 2304 note) is amended as follows: 

9 (1) GOODS COVERED.—(A) The section heading 

10 is amended by inserting ‘‘GOODS OR’’ before 

11 ‘‘SERVICES’’. 

12 (B) Subsection (a) is amended by inserting 

13 ‘‘goods and’’ before ‘‘services’’. 

14 (C) The following provisions are amended by in15 serting ‘‘goods or’’ before ‘‘services’’ each place it 

16 appears: 

17 (i) Paragraphs (1), (2), and (3) of sub18 section (b). 

19 (ii) Subsection (d). 

20 (D) Such section is amended by adding at the 

21 end the following new subsection: 

22 ‘‘(e) APPLICABILITY TO GOODS.—The Secretary shall 

23 revise the regulations promulgated pursuant to subsection 

24 (a) to cover purchases of goods by the Department of De25 fense pursuant to multiple award contracts. The revised 


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1 regulations shall take effect in final form not later than 

2 180 days after the date of the enactment of this subsection 

3 and shall apply to all individual purchases of goods that 

4 are made under multiple award contracts on or after the 

5 effective date, without regard to whether the multiple 

6 award contracts were entered into before, on, or after such 

7 effective date.’’. 

8 (f) PROTEST RIGHTS FOR CERTAIN AWARDS.— 

9 (1) CIVILIAN AGENCY CONTRACTS.—Section 

10 303J(d) of the Federal Property and Administrative 

11 Services Act (41 U.S.C. 253j(d)) is amended by in12 serting ‘‘with a value of less than $500,000’’ after 

13 ‘‘task or delivery order’’. 

14 (2) DEFENSE CONTRACTS.—Section 2304c(d) 

15 of title 10, United States Code, is amended by in16 serting ‘‘with a value of less than $500,000’’ after 

17 ‘‘task or delivery order’’. 

18 Subtitle B—Contract Personnel 

19 Matters 

20 SEC. 211. CONTRACTOR CONFLICTS OF INTEREST. 

21 (a) PROHIBITION ON CONTRACTS RELATING TO IN22 HERENTLY GOVERNMENTAL FUNCTIONS.—The head of 

23 an agency may not enter into a contract for the perform24 ance of any inherently governmental function. 


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1 (b) PROHIBITION ON CONTRACTS FOR CONTRACT

2 OVERSIGHT.— 

3 (1) PROHIBITION.—The head of an agency may 

4 not enter into a contract for the performance of ac5 quisition functions closely associated with inherently 

6 governmental functions with any entity unless the 

7 head of the agency determines in writing that— 

8 (A) neither that entity nor any related en9 tity will be responsible for performing any of 

10 the work under a contract which the entity will 

11 help plan, evaluate, select a source, manage or 

12 oversee; and 

13 (B) the agency has taken appropriate steps 

14 to prevent or mitigate any organizational con15 flict of interest that may arise because the enti16 ty— 

17 (i) has a separate ongoing business 

18 relationship, such as a joint venture or 

19 contract, with any of the contractors to be 

20 overseen; 

21 (ii) would be placed in a position to 

22 affect the value or performance of work it 

23 or any related entity is doing under any 

24 other Government contract; 


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1 (iii) has a reverse role with the con2 tractor to be overseen under one or more 

3 separate Government contracts; or 

4 (iv) has some other relationship with 

5 the contractor to be overseen that could 

6 reasonably appear to bias the contractor’s 

7 judgment. 

8 (2) RELATED ENTITY DEFINED.—In this sub9 section, the term ‘‘related entity’’, with respect to a 

10 contractor, means any subsidiary, parent, affiliate, 

11 joint venture, or other entity related to the con12 tractor. 

13 (c) DEFINITIONS.—In this section: 

14 (1) The term ‘‘inherently governmental func15 tions’’ has the meaning given to such term in part 

16 7.5 of the Federal Acquisition Regulation. 

17 (2) The term ‘‘functions closely associated with 

18 governmental functions’’ means the functions de19 scribed in section 7.503(d) of the Federal Acquisi20 tion Regulation. 

21 (3) The term ‘‘organizational conflict of inter22 est’’ has the meaning given such term in part 9.5 of 

23 the Federal Acquisition Regulation. 


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1 (d) EFFECTIVE DATE AND APPLICABILITY.—This 

2 section shall take effect on the date of the enactment of 

3 this Act and shall apply to— 

4 (1) contracts entered into on or after such date; 

5 (2) any task or delivery order issued on or after 

6 such date under a contract entered into before, on, 

7 or after such date; and 

8 (3) any decision on or after such date to exer9 cise an option or otherwise extend a contract for the 

10 performance of a function relating to contract over11 sight regardless of whether such contract was en12 tered into before, on, or after such date. 

13 SEC. 212. ELIMINATION OF REVOLVING DOOR BETWEEN 

14 FEDERAL PERSONNEL AND CONTRACTORS. 

15 (a) ELIMINATION OF LOOPHOLES ALLOWING

16 FORMER FEDERAL OFFICIALS TO ACCEPT COMPENSA17 TION FROM CONTRACTORS OR RELATED ENTITIES.— 

18 (1) IN GENERAL.—Paragraph (1) of subsection 

19 (d) of section 27 of the Office of Federal Procure20 ment Policy Act (41 U.S.C. 423) is amended— 

21 (A) by striking ‘‘or consultant’’ and insert22 ing ‘‘consultant, lawyer, or lobbyist’’; 

23 (B) by striking ‘‘one year’’ and inserting 

24 ‘‘two years’’; and 


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1 (C) in subparagraph (C), by striking ‘‘per2 sonally made for the Federal agency—’’ and in3 serting ‘‘participated personally and substan4 tially in—’’. 

5 (2) DEFINITION.—Paragraph (2) of such sub6 section is amended to read as follows: 

7 ‘‘(2) For purposes of paragraph (1), the term ‘con8 tractor’ includes any division, affiliate, subsidiary, parent, 

9 joint venture, or other related entity of a contractor.’’. 

10 (b) PROHIBITION ON AWARD OF GOVERNMENT CON11 TRACTS TO FORMER EMPLOYERS.—Such section is fur12 ther amended by adding at the end the following new sub13 section: 

14 ‘‘(i) PROHIBITION ON INVOLVEMENT BY CERTAIN

15 FORMER CONTRACTOR EMPLOYEES IN PROCURE16 MENTS.—A former employee of a contractor who becomes 

17 an employee of the Federal Government shall not be per18 sonally and substantially involved with any Federal agency 

19 procurement involving the employee’s former employer, in20 cluding any division, affiliate, subsidiary, parent, joint 

21 venture, or other related entity of the former employer, 

22 for a period of two years beginning on the date on which 

23 the employee leaves the employment of the contractor un24 less the designated agency ethics officer for the agency 

25 determines in writing that the government’s interest in the 


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1 former employee’s participation in a particular procure2 ment outweighs any appearance of impropriety.’’. 

3 (c) REQUIREMENT FOR FEDERAL PROCUREMENT

4 OFFICERS TO DISCLOSE JOB OFFERS MADE TO REL5 ATIVES.—Subsection (c)(1) of such section is amended by 

6 inserting after ‘‘that official’’ the following: ‘‘, or for a rel7 ative of that official (as defined in section 3110 of title 

8 5, United States Code),’’. 

9 (d) ADDITIONAL CRIMINAL PENALTIES.—Paragraph 

10 (1) of subsection (e) of such section is amended to read 

11 as follows: 

12 ‘‘(1) CRIMINAL PENALTIES.—Whoever engages 

13 in conduct constituting a violation of— 

14 ‘‘(A) subsection (a) or (b) for the purpose 

15 of either— 

16 ‘‘(i) exchanging the information cov17 ered by such subsection for anything of 

18 value, or 

19 ‘‘(ii) obtaining or giving anyone a 

20 competitive advantage in the award of a 

21 Federal agency procurement contract; or 

22 ‘‘(B) subsection (c) or (d); 

23 shall be imprisoned for not more than 5 years, fined 

24 as provided under title 18, Untied States Code, or 

25 both.’’. 


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1 (e) REGULATIONS.—Such section is further amended 

2 by adding at the end the following new subsection: 

3 ‘‘(j) REGULATIONS.—The Director of the Office of 

4 Government Ethics, in consultation with the Adminis5 trator, shall— 

6 ‘‘(1) promulgate regulations to carry out and 

7 ensure the enforcement of this section; and 

8 ‘‘(2) monitor and investigate individual and 

9 agency compliance with this section.’’. 

10 TITLE III—OTHER PERSONNEL 

11 MATTERS 

12 SEC. 301. MINIMUM REQUIREMENTS FOR POLITICAL AP13 POINTEES HOLDING PUBLIC CONTRACTING 

14 AND SAFETY POSITIONS. 

15 (a) IN GENERAL.—A position specified in subsection 

16 (b) may not be held by any political appointee who does 

17 not meet the requirements of subsection (c). 

18 (b) SPECIFIED POSITIONS.—A position specified in 

19 this subsection is any position as follows: 

20 (1) A public contracting position. 

21 (2) A public safety position. 

22 (c) MINIMUM REQUIREMENTS.—An individual shall 

23 not, with respect to any position, be considered to meet 

24 the requirements of this subsection unless such indi25 vidual— 


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1 (1) has academic, management, and leadership 

2 credentials in one or more areas relevant to such po3 sition; 

4 (2) has a superior record of achievement in one 

5 or more areas relevant to such position; 

6 (3) has training and expertise in one or more 

7 areas relevant to such position; and 

8 (4) has not, within the 2-year period ending on 

9 the date of such individual’s nomination for or ap10 pointment to such position, been a lobbyist for any 

11 entity or other client that is subject to the authority 

12 of the agency within which, if appointed, such indi13 vidual would serve. 

14 (d) POLITICAL APPOINTEE.—For purposes of this 

15 section, the term ‘‘political appointee’’ means any indi16 vidual who— 

17 (1) is employed in a position listed in sections 

18 5312 through 5316 of title 5, United States Code 

19 (relating to the Executive Schedule); 

20 (2) is a limited term appointee, limited emer21 gency appointee, or noncareer appointee in the Sen22 ior Executive Service; or 

23 (3) is employed in the executive branch of the 

24 Government in a position which has been excepted 

25 from the competitive service by reason of its policyVerDate Aug 31 2005 03:11 Mar 04, 2006 Jkt 049200 PO 00000 Frm 00020 Fmt 6652 Sfmt 6201 E:\BILLS\S2361.IS S2361

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1 determining, policy-making, or policy-advocating 

2 character. 

3 (e) PUBLIC CONTRACTING POSITION.—For purposes 

4 of this section, the term ‘‘public contracting position’’ 

5 means the following: 

6 (1) The Administrator for Federal Procurement 

7 Policy. 

8 (2) The Administrator of the General Services 

9 Administration. 

10 (3) The Chief Acquisition Officer of any execu11 tive agency, as appointed or designated pursuant to 

12 section 16 of the Office of Federal Procurement Pol13 icy Act (41 U.S.C. 414). 

14 (4) The Under Secretary of Defense for Acqui15 sition, Technology, and Logistics. 

16 (5) Any position (not otherwise identified under 

17 any of the preceding provisions of this subsection) a 

18 primary function of which involves government pro19 curement and procurement policy, as identified by 

20 the head of each employing agency in consultation 

21 with the Office of Personnel Management. 

22 (f) PUBLIC SAFETY POSITION.—For purposes of this 

23 section, the term ‘‘public safety position’’ means the fol24 lowing: 


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1 (1) The Under Secretary for Emergency Pre2 paredness and Response, Department of Homeland 

3 Security. 

4 (2) The Director of the Federal Emergency 

5 Management Agency, Department of Homeland Se6 curity. 

7 (3) Each regional director of the Federal Emer8 gency Management Agency, Department of Home9 land Security. 

10 (4) The Recovery Division Director of the Fed11 eral Emergency Management Agency, Department 

12 of Homeland Security. 

13 (5) The Assistant Secretary for Immigration 

14 and Customs Enforcement, Department of Home15 land Security. 

16 (6) The Assistant Secretary for Public Health 

17 Emergency Preparedness, Department of Health 

18 and Human Services. 

19 (7) The Assistant Administrator for Solid 

20 Waste and Emergency Response, Environmental 

21 Protection Agency. 

22 (8) Any position (not otherwise identified under 

23 any of the preceding provisions of this subsection) a 

24 primary function of which involves responding to a 

25 direct threat to life or property or a hazard to 


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1 health, as identified by the head of each employing 

2 agency in consultation with the Office of Personnel 

3 Management. 

4 (g) PUBLICATION OF POSITIONS.—Beginning not 

5 later than 30 days after the date of the enactment of this 

6 Act, the head of each agency shall maintain on such agen7 cy’s public website a current list of all public contracting 

8 positions and public safety positions within such agency. 

9 (h) COORDINATION WITH OTHER REQUIREMENTS.— 

10 The requirements set forth in subsection (c) shall be in 

11 addition to, and not in lieu of, any requirements that 

12 might otherwise apply with respect to any particular posi13 tion. 

14 (i) DEFINITIONS.—In this section: 

15 (1) The term ‘‘agency’’ means an Executive 

16 agency (as defined by section 105 of title 5, United 

17 States Code). 

18 (2) The terms ‘‘limited term appointee’’, ‘‘lim19 ited emergency appointee’’, and ‘‘noncareer ap20 pointee’’ have the meanings given such terms in sec21 tion 3132 of title 5, United States Code. 

22 (3) The term ‘‘Senior Executive Service’’ has 

23 the meaning given such term by section 2101a of 

24 title 5, United States Code. 


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1 (4) The term ‘‘competitive service’’ has the 

2 meaning given such term by section 2102 of title 5, 

3 United States Code. 

4 (5) The terms ‘‘lobbyist’’ and ‘‘client’’ have the 

5 respective meanings given them by section 3 of the 

6 Lobbying Disclosure Act of 1995 (2 U.S.C. 1602). 

7 (j) CONFORMING AMENDMENT.—Section 16(a) of the 

8 Office of Federal Procurement Policy Act (41 U.S.C. 

9 414(a)) is amended by striking ‘‘non-career employee as’’. 

10 SEC. 302. PROTECTION OF CERTAIN DISCLOSURES OF IN11 FORMATION BY FEDERAL EMPLOYEES. 

12 (a) CLARIFICATION OF DISCLOSURES COVERED.— 

13 Section 2302(b)(8) of title 5, United States Code, is 

14 amended— 

15 (1) in subparagraph (A)— 

16 (A) by striking ‘‘which the employee or ap17 plicant reasonably believes evidences’’ and in18 serting ‘‘, without restriction to time, place, 

19 form, motive, context, or prior disclosure made 

20 to any person by an employee or applicant, in21 cluding a disclosure made in the ordinary 

22 course of an employee’s duties, that the em23 ployee or applicant reasonably believes is evi24 dence of’’; and 


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1 (B) in clause (i), by striking ‘‘a violation’’ 

2 and inserting ‘‘any violation’’; 

3 (2) in subparagraph (B)— 

4 (A) by striking ‘‘which the employee or ap5 plicant reasonably believes evidences’’ and in6 serting ‘‘, without restriction to time, place, 

7 form, motive, context, or prior disclosure made 

8 to any person by an employee or applicant, in9 cluding a disclosure made in the ordinary 

10 course of an employee’s duties, of information 

11 that the employee or applicant reasonably be12 lieves is evidence of’’; and 

13 (B) in clause (i), by striking ‘‘a violation’’ 

14 and inserting ‘‘any violation (other than a viola15 tion of this section)’’; and 

16 (3) by adding at the end the following: 

17 ‘‘(C) any disclosure that— 

18 ‘‘(i) is made by an employee or appli19 cant of information required by law or Ex20 ecutive order to be kept secret in the inter21 est of national defense or the conduct of 

22 foreign affairs that the employee or appli23 cant reasonably believes is direct and spe24 cific evidence of— 


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1 ‘‘(I) any violation of any law, 

2 rule, or regulation; 

3 ‘‘(II) gross mismanagement, a 

4 gross waste of funds, an abuse of au5 thority, or a substantial and specific 

6 danger to public health or safety; or 

7 ‘‘(III) a false statement to Con8 gress on an issue of material fact; and 

9 ‘‘(ii) is made to— 

10 ‘‘(I) a member of a committee of 

11 Congress; 

12 ‘‘(II) any other Member of Con13 gress; or 

14 ‘‘(III) an employee of Congress 

15 who has the appropriate security 

16 clearance and is authorized to receive 

17 information of the type disclosed.’’. 

18 (b) COVERED DISCLOSURES.—Section 2302(a)(2) of 

19 title 5, United States Code, is amended— 

20 (1) in subparagraph (B)(ii), by striking ‘‘and’’ 

21 at the end; 

22 (2) in subparagraph (C)(iii), by striking the pe23 riod at the end and inserting ‘‘; and’’; and 

24 (3) by adding at the end the following: 


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1 ‘‘(D) ‘disclosure’ means a formal or informal 

2 communication or transmission, but does not include 

3 a communication concerning policy decisions that 

4 lawfully exercise discretionary authority unless the 

5 employee providing the disclosure reasonably believes 

6 that the disclosure evidences— 

7 ‘‘(i) any violation of any law, rule, or regu8 lation; or 

9 ‘‘(ii) gross management, a gross waste of 

10 funds, an abuse of authority, or a substantial 

11 and specific danger to public health or safety.’’. 

12 (c) REBUTTABLE PRESUMPTION.—Section 2302(b) 

13 of title 5, United States Code, is amended by amending 

14 the matter following paragraph (12) to read as follows: 

15 ‘‘This subsection shall not be construed to authorize the 

16 withholding of information from Congress or the taking 

17 of any personnel action against an employee who discloses 

18 information to Congress. For purposes of paragraph (8), 

19 any presumption relating to the performance of a duty by 

20 an employee who has authority to take, direct others to 

21 take, recommend, or approve any personnel action may be 

22 rebutted by substantial evidence. For purposes of para23 graph (8), a determination as to whether an employee or 

24 applicant reasonably believes that they have disclosed in25 formation that evidences any violation of law, rule, regulaVerDate Aug 31 2005 03:11 Mar 04, 2006 Jkt 049200 PO 00000 Frm 00027 Fmt 6652 Sfmt 6201 E:\BILLS\S2361.IS S2361

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1 tion, gross mismanagement, a gross waste of funds, an 

2 abuse of authority, or a substantial and specific danger 

3 to public health or safety shall be made by determining 

4 whether a disinterested observer with knowledge of the es5 sential facts known to and readily ascertainable by the em6 ployee would reasonably conclude that the actions of the 

7 Government evidence such violations, mismanagement, 

8 waste, abuse, or danger.’’. 

9 (d) NONDISCLOSURE POLICIES, FORMS, AND AGREE10 MENTS; SECURITY CLEARANCES; AND RETALIATORY IN11 VESTIGATIONS.— 

12 (1) PERSONNEL ACTION.—Section 

13 2302(a)(2)(A) of title 5, United States Code, is 

14 amended— 

15 (A) in clause (x), by striking ‘‘and’’ after 

16 the semicolon; and 

17 (B) by redesignating clause (xi) as clause 

18 (xiv) and inserting after clause (x) the fol19 lowing: 

20 ‘‘(xi) the implementation or enforce21 ment of any nondisclosure policy, form, or 

22 agreement; 

23 ‘‘(xii) a suspension, revocation, or 

24 other determination relating to a security 


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1 clearance or any other access determina2 tion by a covered agency; 

3 ‘‘(xiii) an investigation, other than 

4 any ministerial or nondiscretionary fact 

5 finding activities necessary for the agency 

6 to perform its mission, of an employee or 

7 applicant for employment because of any 

8 activity protected under this section; and’’. 

9 (2) PROHIBITED PERSONNEL PRACTICE.—Sec10 tion 2302(b) of title 5, United States Code, is 

11 amended— 

12 (A) in paragraph (11), by striking ‘‘or’’ at 

13 the end; 

14 (B) in paragraph (12), by striking the pe15 riod and inserting a semicolon; and 

16 (C) by inserting after paragraph (12) the 

17 following: 

18 ‘‘(13) implement or enforce any nondisclosure 

19 policy, form, or agreement, if such policy, form, or 

20 agreement does not contain the following statement: 

21 ‘These provisions are consistent with and do not su22 persede, conflict with, or otherwise alter the em23 ployee obligations, rights, or liabilities created by 

24 Executive Order No. 12958; section 7211 (governing 

25 disclosures to Congress); section 1034 of title 10 


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1 (governing disclosure to Congress by members of the 

2 military); section 2302(b)(8) (governing disclosures 

3 of illegality, waste, fraud, abuse, or public health or 

4 safety threats); the Intelligence Identities Protection 

5 Act of 1982 (50 U.S.C. 421 et seq.) (governing dis6 closures that could expose confidential Government 

7 agents); and the statutes which protect against dis8 closures that could compromise national security, in9 cluding sections 641, 793, 794, 798, and 952 of title 

10 18 and section 4(b) of the Subversive Activities Con11 trol Act of 1950 (50 U.S.C. 783(b)). The defini12 tions, requirements, obligations, rights, sanctions, 

13 and liabilities created by such Executive order and 

14 such statutory provisions are incorporated into this 

15 agreement and are controlling’; or 

16 ‘‘(14) conduct, or cause to be conducted, an in17 vestigation, other than any ministerial or nondis18 cretionary fact finding activities necessary for the 

19 agency to perform its mission, of an employee or ap20 plicant for employment because of any activity pro21 tected under this section.’’. 

22 (3) BOARD AND COURT REVIEW OF ACTIONS

23 RELATING TO SECURITY CLEARANCES.— 


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1 (A) IN GENERAL.—Chapter 77 of title 5, 

2 United States Code, is amended by inserting 

3 after section 7702 the following: 

4 ‘‘§ 7702a. Actions relating to security clearances 

5 ‘‘(a) In any appeal relating to the suspension, revoca6 tion, or other determination relating to a security clear7 ance or access determination, the Merit Systems Protec8 tion Board or any reviewing court— 

9 ‘‘(1) shall determine whether paragraph (8) or 

10 (9) of section 2302(b) was violated; 

11 ‘‘(2) may not order the President or the des12 ignee of the President to restore a security clearance 

13 or otherwise reverse a determination of clearance 

14 status or reverse an access determination; and 

15 ‘‘(3) subject to paragraph (2), may issue declar16 atory relief and any other appropriate relief. 

17 ‘‘(b)(1) If, in any final judgment, the Board or court 

18 declares that any suspension, revocation, or other deter19 mination with regards to a security clearance or access 

20 determination was made in violation of paragraph (8) or 

21 (9) of section 2302(b), the affected agency shall conduct 

22 a review of that suspension, revocation, access determina23 tion, or other determination, giving great weight to the 

24 Board or court judgment. 


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1 ‘‘(2) Not later than 30 days after any Board or court 

2 judgment declaring that a security clearance suspension, 

3 revocation, access determination, or other determination 

4 was made in violation of paragraph (8) or (9) of section 

5 2302(b), the affected agency shall issue an unclassified re6 port to the congressional committees of jurisdiction (with 

7 a classified annex if necessary), detailing the cir8 cumstances of the agency’s security clearance suspension, 

9 revocation, other determination, or access determination. 

10 A report under this paragraph shall include any proposed 

11 agency action with regards to the security clearance or ac12 cess determination. 

13 ‘‘(c) An allegation that a security clearance or access 

14 determination was revoked or suspended in retaliation for 

15 a protected disclosure shall receive expedited review by the 

16 Office of Special Counsel, the Merit Systems Protection 

17 Board, and any reviewing court. 

18 ‘‘(d) For purposes of this section, corrective action 

19 may not be ordered if the agency demonstrates by a pre20 ponderance of the evidence that it would have taken the 

21 same personnel action in the absence of such disclosure.’’. 

22 (B) TECHNICAL AND CONFORMING AMEND23 MENT.—The table of sections for chapter 77 of 

24 title 5, United States Code, is amended by inVerDate Aug 31 2005 03:11 Mar 04, 2006 Jkt 049200 PO 00000 Frm 00032 Fmt 6652 Sfmt 6201 E:\BILLS\S2361.IS S2361

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1 serting after the item relating to section 7702 

2 the following: 

‘‘7702a. Actions relating to security clearances.’’. 

3 (e) EXCLUSION OF AGENCIES BY THE PRESIDENT.— 

4 Section 2302(a)(2)(C) of title 5, United States Code, is 

5 amended by striking clause (ii) and inserting the following: 

6 ‘‘(ii)(I) the Federal Bureau of Investiga7 tion, the Office of the Director of National In8 telligence, the Central Intelligence Agency, the 

9 Defense Intelligence Agency, the National 

10 Geospatial-Intelligence Agency, and the Na11 tional Security Agency; and 

12 ‘‘(II) as determined by the President, any 

13 executive agency or unit thereof the principal 

14 function of which is the conduct of foreign in15 telligence or counterintelligence activities, if the 

16 determination (as that determination relates to 

17 a personnel action) is made before that per18 sonnel action; or’’. 

19 (f) ATTORNEY FEES.—Section 1204(m)(1) of title 5, 

20 United States Code, is amended by striking ‘‘agency in21 volved’’ and inserting ‘‘agency where the prevailing party 

22 is employed or has applied for employment’’. 

23 (g) DISCIPLINARY ACTION.—Section 1215(a)(3) of 

24 title 5, United States Code, is amended to read as follows: 


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1 ‘‘(3)(A) A final order of the Board may im2 pose— 

3 ‘‘(i) disciplinary action consisting of re4 moval, reduction in grade, debarment from 

5 Federal employment for a period not to exceed 

6 5 years, suspension, or reprimand; 

7 ‘‘(ii) an assessment of a civil penalty not to 

8 exceed $1,000; or 

9 ‘‘(iii) any combination of disciplinary ac10 tions described under clause (i) and an assess11 ment described under clause (ii). 

12 ‘‘(B) In any case in which the Board finds that 

13 an employee has committed a prohibited personnel 

14 practice under paragraph (8) or (9) of section 

15 2302(b), the Board shall impose disciplinary action 

16 if the Board finds that the activity protected under 

17 paragraph (8) or (9) of section 2302(b) was a sig18 nificant motivating factor, even if other factors also 

19 motivated the decision, for the employee’s decision to 

20 take, fail to take, or threaten to take or fail to take 

21 a personnel action, unless that employee dem22 onstrates, by preponderance of evidence, that the 

23 employee would have taken, failed to take, or threat24 ened to take or fail to take the same personnel ac25 tion, in the absence of such protected activity.’’. 


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1 (h) SPECIAL COUNSEL AMICUS CURIAE APPEAR2 ANCE.—Section 1212 of title 5, United States Code, is 

3 amended by adding at the end the following: 

4 ‘‘(h)(1) The Special Counsel is authorized to appear 

5 as amicus curiae in any action brought in a court of the 

6 United States related to any civil action brought in con7 nection with section 2302(b) (8) or (9), or subchapter III 

8 of chapter 73, or as otherwise authorized by law. In any 

9 such action, the Special Counsel is authorized to present 

10 the views of the Special Counsel with respect to compli11 ance with section 2302(b) (8) or (9) or subchapter III of 

12 chapter 77 and the impact court decisions would have on 

13 the enforcement of such provisions of law. 

14 ‘‘(2) A court of the United States shall grant the ap15 plication of the Special Counsel to appear in any such ac16 tion for the purposes described in subsection (a).’’. 

17 (i) JUDICIAL REVIEW.— 

18 (1) IN GENERAL.—Section 7703(b)(1) of title 

19 5, United States Code, is amended to read as fol20 lows: 

21 ‘‘(b)(1)(A) Except as provided in subparagraph (B) 

22 and paragraph (2), a petition to review a final order or 

23 final decision of the Board shall be filed in the United 

24 States Court of Appeals for the Federal Circuit. Notwith25 standing any other provision of law, any petition for reVerDate Aug 31 2005 03:11 Mar 04, 2006 Jkt 049200 PO 00000 Frm 00035 Fmt 6652 Sfmt 6201 E:\BILLS\S2361.IS S2361

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1 view must be filed within 60 days after the date the peti2 tioner received notice of the final order or decision of the 

3 Board. 

4 ‘‘(B) During the 5-year period beginning on the effec5 tive date of this subsection, a petition to review a final 

6 order or final decision of the Board in a case alleging a 

7 violation of paragraph (8) or (9) of section 2302(b) shall 

8 be filed in the United States Court of Appeals for the Fed9 eral Circuit or any court of appeals of competent jurisdic10 tion as provided under subsection (b)(2).’’. 

11 (2) REVIEW OBTAINED BY OFFICE OF PER12 SONNEL MANAGEMENT.—Section 7703(d) of title 5, 

13 United States Code, is amended to read as follows: 

14 ‘‘(d)(1) Except as provided under paragraph (2), this 

15 paragraph shall apply to any review obtained by the Direc16 tor of the Office of Personnel Management. The Director 

17 of the Office of Personnel Management may obtain review 

18 of any final order or decision of the Board by filing, within 

19 60 days after the date the Director received notice of the 

20 final order or decision of the Board, a petition for judicial 

21 review in the United States Court of Appeals for the Fed22 eral Circuit if the Director determines, in his discretion, 

23 that the Board erred in interpreting a civil service law, 

24 rule, or regulation affecting personnel management and 

25 that the Board’s decision will have a substantial impact 


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1 on a civil service law, rule, regulation, or policy directive. 

2 If the Director did not intervene in a matter before the 

3 Board, the Director may not petition for review of a Board 

4 decision under this section unless the Director first peti5 tions the Board for a reconsideration of its decision, and 

6 such petition is denied. In addition to the named respond7 ent, the Board and all other parties to the proceedings 

8 before the Board shall have the right to appear in the pro9 ceeding before the Court of Appeals. The granting of the 

10 petition for judicial review shall be at the discretion of the 

11 Court of Appeals. 

12 ‘‘(2) During the 5-year period beginning on the effec13 tive date of this subsection, this paragraph shall apply to 

14 any review relating to paragraph (8) or (9) of section 

15 2302(b) obtained by the Director of the Office of Per16 sonnel Management. The Director of the Office of Per17 sonnel Management may obtain review of any final order 

18 or decision of the Board by filing, within 60 days after 

19 the date the Director received notice of the final order or 

20 decision of the Board, a petition for judicial review in the 

21 United States Court of Appeals for the Federal Circuit 

22 or any court of appeals of competent jurisdiction as pro23 vided under subsection (b)(2) if the Director determines, 

24 in his discretion, that the Board erred in interpreting 

25 paragraph (8) or (9) of section 2302(b). If the Director 


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1 did not intervene in a matter before the Board, the Direc2 tor may not petition for review of a Board decision under 

3 this section unless the Director first petitions the Board 

4 for a reconsideration of its decision, and such petition is 

5 denied. In addition to the named respondent, the Board 

6 and all other parties to the proceedings before the Board 

7 shall have the right to appear in the proceeding before 

8 the court of appeals. The granting of the petition for judi9 cial review shall be at the discretion of the Court of Ap10 peals.’’. 

11 (j) NONDISCLOSURE POLICIES, FORMS, AND AGREE12 MENTS.— 

13 (1) IN GENERAL.— 

14 (A) REQUIREMENT.—Each agreement in 

15 Standard Forms 312 and 4414 of the Govern16 ment and any other nondisclosure policy, form, 

17 or agreement of the Government shall contain 

18 the following statement: ‘‘These restrictions are 

19 consistent with and do not supersede, conflict 

20 with, or otherwise alter the employee obliga21 tions, rights, or liabilities created by Executive 

22 Order No. 12958; section 7211 of title 5, 

23 United States Code (governing disclosures to 

24 Congress); section 1034 of title 10, United 

25 States Code (governing disclosure to Congress 


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1 by members of the military); section 2302(b)(8) 

2 of title 5, United States Code (governing disclo3 sures of illegality, waste, fraud, abuse or public 

4 health or safety threats); the Intelligence Iden5 tities Protection Act of 1982 (50 U.S.C. 421 et 

6 seq.) (governing disclosures that could expose 

7 confidential Government agents); and the stat8 utes which protect against disclosure that may 

9 compromise the national security, including sec10 tions 641, 793, 794, 798, and 952 of title 18, 

11 United States Code, and section 4(b) of the 

12 Subversive Activities Act of 1950 (50 U.S.C. 

13 783(b)). The definitions, requirements, obliga14 tions, rights, sanctions, and liabilities created 

15 by such Executive order and such statutory 

16 provisions are incorporated into this agreement 

17 and are controlling.’’. 

18 (B) ENFORCEABILITY.—Any nondisclosure 

19 policy, form, or agreement described under sub20 paragraph (A) that does not contain the state21 ment required under subparagraph (A) may not 

22 be implemented or enforced to the extent such 

23 policy, form, or agreement is inconsistent with 

24 that statement. 


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1 (2) PERSONS OTHER THAN GOVERNMENT EM2 PLOYEES.—Notwithstanding paragraph (1), a non3 disclosure policy, form, or agreement that is to be 

4 executed by a person connected with the conduct of 

5 an intelligence or intelligence-related activity, other 

6 than an employee or officer of the United States 

7 Government, may contain provisions appropriate to 

8 the particular activity for which such document is to 

9 be used. Such form or agreement shall, at a min10 imum, require that the person will not disclose any 

11 classified information received in the course of such 

12 activity unless specifically authorized to do so by the 

13 United States Government. Such nondisclosure 

14 forms shall also make it clear that such forms do 

15 not bar disclosures to Congress or to an authorized 

16 official of an executive agency or the Department of 

17 Justice that are essential to reporting a substantial 

18 violation of law. 

19 (k) CLARIFICATION OF WHISTLEBLOWER RIGHTS

20 FOR CRITICAL INFRASTRUCTURE INFORMATION.—Section 

21 214(c) of the Homeland Security Act of 2002 (6 U.S.C. 

22 133(c)) is amended by adding at the end the following: 

23 ‘‘For purposes of this section a permissible use of inde24 pendently obtained information includes the disclosure of 


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1 such information under section 2302(b)(8) of title 5, 

2 United States Code.’’. 

3 (l) ADVISING EMPLOYEES OF RIGHTS.—Section 

4 2302(c) of title 5, United States Code, is amended by in5 serting ‘‘, including how to make a lawful disclosure of 

6 information that is specifically required by law or Execu7 tive order to be kept secret in the interest of national de8 fense or the conduct of foreign affairs to the Special Coun9 sel, the Inspector General of an agency, Congress, or other 

10 agency employee designated to receive such disclosures’’ 

11 after ‘‘chapter 12 of this title’’. 

12 (m) SCOPE OF DUE PROCESS.— 

13 (1) SPECIAL COUNSEL.—Section 

14 1214(b)(4)(B)(ii) of title 5, United States Code, is 

15 amended by inserting ‘‘, after a finding that a pro16 tected disclosure was a contributing factor,’’ after 

17 ‘‘ordered if’’. 

18 (2) INDIVIDUAL ACTION.—Section 1221(e)(2) 

19 of title 5, United States Code, is amended by insert20 ing ‘‘, after a finding that a protected disclosure was 

21 a contributing factor,’’ after ‘‘ordered if’’. 

22 (n) EFFECTIVE DATE.—This section and the amend23 ment made by this section shall take effect 30 days after 

24 the date of the enactment of this Act. 

Æ 


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