I 

111TH CONGRESS 

1ST SESSION H. R. 2349 

To provide in personam jurisdiction in civil actions against contractors of 

the United States Government performing contracts abroad with respect 

to serious bodily injuries of members of the Armed Forces, civilian 

employees of the United States Government, and United States citizen 

employees of companies performing work for the United States Government in connection with contractor activities, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

MAY 12, 2009 

Mr. RYAN of Ohio (for himself, Mr. BOCCIERI, Ms. SUTTON, Mr. KUCINICH, 

and Ms. KILROY) introduced the following bill; which was referred to the 

Committee on Oversight and Government Reform 

A BILL 

To provide in personam jurisdiction in civil actions against 

contractors of the United States Government performing 

contracts abroad with respect to serious bodily injuries 

of members of the Armed Forces, civilian employees of 

the United States Government, and United States citizen 

employees of companies performing work for the United 

States Government in connection with contractor activities, 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 ‘‘Lieutenant Colonel 

3 Dominic ‘Rocky’ Baragona Justice for American Heroes 

4 Harmed by Contractors Act’’. 

5 SEC. 2. FINDINGS. 

6 Congress makes the following findings: 

7 (1) On May 19, 2003, Lieutenant Colonel 

8 Dominic ‘‘Rocky’’ Baragona, United States Army, 

9 was killed in Safwan, Iraq, when his vehicle was 

10 struck by a truck being driven by a driver employed 

11 by the Kuwait & Gulf Link Transport Company, a 

12 Kuwait company under multiple contracts with the 

13 Department of Defense to provide logistics services 

14 in support of the United States military in Kuwait 

15 and Iraq, after the truck struck a pile of debris, 

16 jacknifed, and crossed two lanes of traffic. 

17 (2) Lieutenant Colonel Baragona, who was born 

18 on June 14, 1960, and commissioned into the 

19 United States Army after graduating from the 

20 United States Military Academy in 1982, was serv21 ing as a logistician in III Corps Artillery in Iraq at 

22 the time of his death, and is now forever at rest in 

23 Arlington National Cemetery. 

24 (3) Lieutenant Colonel Baragona was, at the 

25 time of his death, the highest-ranking United States 

26 military officer to be killed in Iraq following the iniVerDate Nov 24 2008 06:46 May 14, 2009 Jkt 079200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H2349.IH H2349

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1 tial invasion of Iraq in March 2003 and since the 

2 liberation of Kuwait by United States forces. 

3 (4) In November 2007, the United States Dis4 trict Court for the Northern District of Georgia en5 tered a default judgment against Kuwait & Gulf 

6 Link Transport Company and ordered that 

7 $4,900,000 be paid in damages for the death of 

8 Lieutenant Colonel Baragona. 

9 (5) In the legal proceeding brought against Ku10 wait & Gulf Link Transport Company in United 

11 States district court, Kuwait & Gulf Link Transport 

12 Company knowingly chose not to appear to answer 

13 for the actions of its employee and similarly acted 

14 inconsistently with the conduct of a responsible 

15 party when it evaded or refused service of process in 

16 the claim even when service of process was issued di17 rectly by the court, only appearing in the action 

18 after the Department of Defense had issued a ‘‘re19 quest for information’’ letter, which was a follow-up 

20 letter to an Army notice for Kuwait & Gulf Link 

21 Transport Company to ‘‘show cause’’ why the com22 pany should not be debarred for its refusal to accept 

23 service of process in the Baragona civil litigation, re24 questing information regarding the company’s intent 

25 to either honor the court’s final judgment against it 


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1 or to otherwise respond to the judgment. A failure 

2 to respond to the request for information would have 

3 jeopardized the company’s capacity to continue to 

4 perform as a contractor of the United States Gov5 ernment. 

6 (6) Kuwait & Gulf Link Transport Company 

7 has stated that it neither evaded nor refused service 

8 of process in the civil litigation, asserting that the 

9 initial and multiple attempts at service of process 

10 made in accordance with international law via cer11 tified international mail courier did not comply with 

12 Kuwait law. Service of process was ultimately exe13 cuted in accordance with Kuwait law via the Kuwait 

14 Ministry of Justice. The Federal district court over15 seeing the case ruled that service of process had 

16 been properly executed prior to entering the default 

17 judgment against Kuwait & Gulf Link Transport 

18 Company. Kuwait & Gulf Link Transport Company 

19 has not disputed in court that service of process was 

20 properly executed and thereby has consented to the 

21 court’s determination that service of process in the 

22 case was proper. 

23 (7) Kuwait & Gulf Link Transport Company 

24 has since made an appearance in the action only to 

25 dispute the court’s personal jurisdiction over it and 


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1 to request the dismissal of the judgment against it 

2 and has not contested in court that its negligence 

3 was the cause of Lieutenant Colonel Baragona’s 

4 wrongful death. But for Kuwait & Gulf Link Trans5 port Company’s fear of debarment, it may not have 

6 entered the action to answer for its negligence. 

7 (8) The Honorable William S. Duffey, Jr., 

8 United States District Judge in the Northern Dis9 trict of Georgia, has described the conduct of Ku10 wait & Gulf Link Transport Company as ‘‘evasive 

11 and disruptive to a significant jurisdictional issue’’, 

12 has further described the conduct of Kuwait & Gulf 

13 Link Transport Company as ‘‘ghastly’’, has ques14 tioned whether Kuwait & Gulf Link Transport Com15 pany ‘‘appreciate[s] the sacrifice of the citizens and 

16 the men of our military’’, and has further questioned 

17 why the company would not compensate the 

18 Baragona family when an employee of the company 

19 ‘‘apparently by negligence, has caused the death and 

20 caused damages to another person’’ and when the 

21 company ‘‘has the wherewithal to compensate [the] 

22 victims of [the] negligence’’. 

23 (9) In March 2009, the Baragona family sought 

24 to amicably resolve their claim against Kuwait & 

25 Gulf Link Transport Company through court apVerDate Nov 24 2008 06:46 May 14, 2009 Jkt 079200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H2349.IH H2349

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1 pointed mediation. Kuwait & Gulf Link Transport 

2 Company formally declined to join in or consent to 

3 the Baragona’s request for court appointed medi4 ation. 

5 (10) Kuwait & Gulf Link Transport Company 

6 is a foreign-owned contractor of the United States 

7 Government whose earnings under United States 

8 Government contracts exceed $45,000,000 from 

9 prime contracts and are reported to exceed 

10 $100,000,000 from subcontracts. 

11 (11) In a special advertising section of the New 

12 York Times, the Chairman of Kuwait & Gulf Link 

13 Holding Company, a separate but related legal enti14 ty, described the business of Kuwait & Gulf Link 

15 Holding Company with the United States Armed 

16 Forces as follows: ‘‘[The] U.S. military is one of our 

17 largest customers today. We have been working with 

18 [the] U.S. military since 1992. Immediately after 

19 [the] liberation of Kuwait, we established our busi20 ness again, and we started working with them, and 

21 have continued now, for over 15 years’’. 

22 (12) Kuwait & Gulf Link Transport Company 

23 has asserted that it had insurance for its operations 

24 in Iraq at the time of the death of Lieutenant Colo25 nel Baragona, such insurance having been a requireVerDate Nov 24 2008 06:46 May 14, 2009 Jkt 079200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H2349.IH H2349

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1 ment under its contracts and subcontracts with the 

2 Department of Defense. However, it has failed to 

3 rely on that insurance to address the wrongful death 

4 claim of the Baragona family, which appears incon5 sistent with its claim of insurance coverage and is 

6 unjust to the Baragona family. 

7 (13) The Government of Kuwait first failed to 

8 respond to, and then declined to act on, requests by 

9 members of Congress that it instruct Kuwait & Gulf 

10 Link Transport Company, its corporate citizen, to 

11 conduct itself honorably with respect to the claim of 

12 the Baragona family. 

13 (14) Kuwait & Gulf Link Transport Company, 

14 the Kuwait Government, and others should act hon15 orably to deliver justice to the Baragona family and 

16 to honor the service and sacrifice of Lieutenant 

17 Colonel Dominic Baragona. 

18 (15) The Baragona family has nobly sought 

19 justice in the wrongful death of their son and broth20 er but has faced many obstacles from Kuwait & Gulf 

21 Link Transport Company and others in their efforts. 

22 (16) Members of the Armed Forces, civilian em23 ployees of the United States Government, and 

24 United States citizen employees of companies per25 forming work for the United States Government, or, 


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1 in the event of their death, their family members, 

2 should be able to seek redress from Federal contrac3 tors in a United States Federal court when the 

4 member of the Armed Forces, civilian employee, or 

5 United States citizen employee experiences serious 

6 bodily injury because of the negligent performance 

7 by the contractor of its work for the United States 

8 Government. 

9 SEC. 3. IN PERSONAM JURISDICTION IN CIVIL SUITS WITH 

10 RESPECT TO SERIOUS BODILY INJURIES OF 

11 MEMBERS OF THE ARMED FORCES, CIVILIAN 

12 EMPLOYEES OF THE UNITED STATES, AND 

13 UNITED STATES CITIZEN EMPLOYEES OF 

14 COMPANIES PERFORMING WORK FOR THE 

15 UNITED STATES AGAINST ENTITIES UNDER 

16 UNITED STATES GOVERNMENT CONTRACTS 

17 PERFORMED ABROAD. 

18 (a) IN GENERAL.—The Director of the Office of 

19 Management and Budget shall amend the Federal Acqui20 sition Regulation to include in the regulation with respect 

21 to any contract for work to be performed outside the 

22 United States that is approved and financed by the United 

23 States Government, or any executive department, inde24 pendent establishment, or agency thereof, or any subVerDate Nov 24 2008 06:46 May 14, 2009 Jkt 079200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H2349.IH H2349

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1 contract or subordinate contract under such a contract, 

2 the following: 

3 (1) A requirement that the contractor consent 

4 to in personam jurisdiction over the contractor by 

5 the Federal courts of the United States with respect 

6 to any suit alleging a serious bodily injury of a mem7 ber of the Armed Forces, civilian employee of the 

8 United States Government, or United States citizen 

9 employee of a company performing work for the 

10 United States Government, including a suit for neg11 ligence against one or more employees of the con12 tractor for which the contractor may be liable under 

13 theories of vicarious liability. 

14 (2) A clause specifying that consent to in per15 sonam jurisdiction under paragraph (1) shall not op16 erate to deprive or terminate in personam jurisdic17 tion as described in that paragraph in any other 

18 court that otherwise has in personam jurisdiction as 

19 described in that paragraph under applicable law. 

20 (3) A requirement that, where a cause of action 

21 in a suit described in paragraph (1) arises from an 

22 act or omission occurring outside the United States, 

23 in personam jurisdiction in a suit covered by para24 graph (1)— 

25 (A) may lie either— 


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1 (i) in the district court of the United 

2 States of the legal residence of the injured 

3 person, deceased, or heirs of the deceased, 

4 or in the place of the estate established for 

5 the deceased; or 

6 (ii) in the district court of the United 

7 States of the command issuing the con8 tract; or 

9 (B) if in personam jurisdiction cannot be 

10 established in a district court of the United 

11 States under subparagraph (A), shall lie in the 

12 United States District Court for the District of 

13 Columbia. 

14 (4) In the case of a contract covered by this 

15 section with a value of $5,000,000 or more and 

16 awarded to a contractor that does not maintain an 

17 office in the United States, a requirement that the 

18 contractor designate an agent located in the United 

19 States for service of process in any suit described in 

20 paragraph (1). 

21 (5) A requirement that— 

22 (A) any suit described in paragraph (1) 

23 shall be analyzed in accordance with the sub24 stantive laws of the United States; and 


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1 (B) if pursuant to such requirement the 

2 law applicable to such suit is the law of the lo3 cation where the cause of such suit occurred 

4 and the location is designated as a hazardous 

5 duty zone by the Department of Defense, the 

6 tort law of the State in which such suit is 

7 brought shall be the law applicable to such case 

8 rather than the law of the location where the 

9 cause of such suit occurred. 

10 (b) SERIOUS BODILY INJURY DEFINED.—In sub11 section (a), the term ‘‘serious bodily injury’’ means bodily 

12 injury which involves— 

13 (1) death or a substantial risk of death; 

14 (2) extreme physical pain; 

15 (3) protracted and obvious disfigurement; or 

16 (4) protracted loss or impairment of the func17 tion of a bodily member, organ, or mental faculty. 

18 (c) EFFECTIVE DATE.—The amendments to the Fed19 eral Acquisition Regulation made pursuant to subsection 

20 (a) shall take effect on such date as the Director shall 

21 specify, but not later than 90 days after the date of the 

22 enactment of this Act. 

23 (d) APPLICABILITY.— 

24 (1) IN GENERAL.—The amendments to the 

25 Federal Acquisition Regulation made pursuant to 


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1 subsection (a) shall apply with respect to any con2 tract covered by that subsection that is entered into 

3 on or after the effective date of such amendments. 

4 (2) PROSPECTIVE APPLICABILITY UNDER CER5 TAIN CURRENT CONTRACTS.— 

6 (A) INDEFINITE DELIVERY, INDEFINITE

7 QUANTITY CONTRACTS.—In the case of an in8 definite delivery, indefinite quantity contract in 

9 effect as of the effective date of the amend10 ments to the Federal Acquisition Regulation 

11 made pursuant to subsection (a), the amend12 ments to the Federal Acquisition Regulation 

13 made pursuant to subsection (a) shall apply to 

14 any task order under such contract, or any sub15 contract of such contract, that is made on or 

16 after the effective date of such amendments. 

17 (B) MODIFICATIONS OF CURRENT CON18 TRACTS.—In the case of any contract or sub19 contract in effect as of the effective date of the 

20 amendments to the Federal Acquisition Regula21 tion made pursuant to subsection (a) that is 

22 modified after the effective date of such amend23 ments, the amendments to the Federal Acquisi24 tion Regulation made pursuant to subsection 

25 (a) shall apply with respect to any modification 


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1 of such contract or subcontract after the effec2 tive date of such amendments. 

3 (3) CERTAIN OTHER CONTRACTS.—In any civil 

4 action commenced during the period beginning on 

5 September 11, 2001, and ending on the date of the 

6 enactment of this Act to which the requirement in 

7 subsection (a)(1) would have applied if such sub8 section had been in effect during such period, the 

9 contractor shall consent to the jurisdiction of the 

10 Federal courts of the United States in such action 

11 as a condition of— 

12 (A) entering into any contract with the 

13 United States Government on or after the date 

14 of the enactment of this Act; or 

15 (B) receiving any payment from the 

16 United States Government for performing any 

17 activity under a contract with the United States 

18 Government on or after the date of the enact19 ment of this Act. 

20 (4) ADDITIONAL DEFINITION OF CON21 TRACTOR.—For purposes of paragraph (3), the term 

22 ‘‘contractor’’— 

23 (A) shall have the meaning given that term 

24 in section 6(1); and 


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1 (B) shall also include any subsidiary, par2 ent company, or successor entity of a contractor 

3 formed to act as a successor in interest of a 

4 contractor for United States Government con5 tracting purposes. 

6 SEC. 4. IN PERSONAM JURISDICTION FOR CIVIL OR CRIMI7 NAL SUITS BROUGHT BY THE UNITED STATES 

8 GOVERNMENT ALLEGING WRONGDOING 

9 UNDER UNITED STATES GOVERNMENT CON10 TRACTS PERFORMED ABROAD. 

11 (a) IN GENERAL.—The Director of the Office of 

12 Management and Budget shall amend the Federal Acqui13 sition Regulation to include in the regulation with respect 

14 to any contract for work to be performed outside the 

15 United States that is approved and financed by the United 

16 States Government, or any executive department, inde17 pendent establishment, or agency thereof, or any subordi18 nate contract under such a contract, the following: 

19 (1) A requirement that the contractor consent 

20 to in personam jurisdiction over the contractor by 

21 the Federal courts of the United States with respect 

22 to any civil or criminal suit brought by the United 

23 States Government alleging wrongdoing associated 

24 with the performance of such a contract. 


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1 (2) A clause specifying that consent to in per2 sonam jurisdiction under paragraph (1) shall not op3 erate to deprive or terminate in personam jurisdic4 tion as described in that paragraph in any other 

5 court that otherwise has in personam jurisdiction as 

6 described in that paragraph under applicable law. 

7 (3) A requirement that, where a cause of action 

8 in a suit described in paragraph (1) arises from an 

9 act or omission occurring outside the United States, 

10 in personam jurisdiction in a suit covered by para11 graph (1) shall lie in the United States District 

12 Court for the District of Columbia if it cannot be es13 tablished in another Federal court. 

14 (4) In the case of a contract covered by this 

15 section with a value of $5,000,000 or more and 

16 awarded to a contractor that does not maintain an 

17 office in the United States, a requirement that the 

18 contractor designate an agent located in the United 

19 States for service of process in any suit described in 

20 paragraph (1). 

21 (b) EFFECTIVE DATE.—The amendments to the Fed22 eral Acquisition Regulation made pursuant to subsection 

23 (a) shall take effect on such date as the Director shall 

24 specify, but not later than 90 days after the date of the 

25 enactment of this Act. 


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1 (c) APPLICABILITY.— 

2 (1) IN GENERAL.—The amendments to the 

3 Federal Acquisition Regulation made pursuant to 

4 subsection (a) shall apply with respect to any con5 tract covered by that subsection that is entered into 

6 on or after the effective date of such amendments. 

7 (2) PROSPECTIVE APPLICABILITY UNDER CER8 TAIN CURRENT CONTRACTS.— 

9 (A) INDEFINITE DELIVERY, INDEFINITE

10 QUANTITY CONTRACTS.—In the case of an in11 definite delivery, indefinite quantity contract in 

12 effect as of the effective date of the amend13 ments to the Federal Acquisition Regulation 

14 made pursuant to subsection (a), the amend15 ments to the Federal Acquisition Regulation 

16 made pursuant to subsection (a) shall apply to 

17 any task order under such contract, or any sub18 contract of such contract, that is made on or 

19 after the effective date of such amendments. 

20 (B) MODIFICATIONS OF CURRENT CON21 TRACTS.—In the case of any contract or sub22 contract in effect as of the effective date of the 

23 amendments to the Federal Acquisition Regula24 tion made pursuant to subsection (a) that is 

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1 ments, the amendments to the Federal Acquisi2 tion Regulation made pursuant to subsection 

3 (a) shall apply with respect to any modification 

4 of such contract or subcontract after the effec5 tive date of such amendments. 

6 (3) CERTAIN OTHER CONTRACTS.—In any civil 

7 or criminal action commenced during the period be8 ginning on September 11, 2001, and ending on the 

9 date of the enactment of this Act to which the re10 quirement in subsection (a)(1) would have applied if 

11 such subsection had been in effect during such pe12 riod, the contractor shall consent to the jurisdiction 

13 of the Federal courts of the United States in such 

14 action as a condition of— 

15 (A) entering into any contract with the 

16 United States Government on or after the date 

17 of the enactment of this Act; or 

18 (B) receiving any payment from the 

19 United States Government for performing any 

20 activity under a contract with the United States 

21 Government on or after the date of the enact22 ment of this Act. 

23 (4) ADDITIONAL DEFINITION OF CON24 TRACTOR.—For purposes of paragraph (3), the term 

25 ‘‘contractor’’— 


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1 (A) shall have the meaning given that term 

2 in section 6(1); and 

3 (B) shall also include any subsidiary, par4 ent company, or successor entity of a contractor 

5 formed to act as a successor in interest of a 

6 contractor for United States Government con7 tracting purposes. 

8 SEC. 5. DEBARMENT OR SUSPENSION OF UNITED STATES 

9 GOVERNMENT CONTRACTORS FOR EVASION 

10 OF PROCESS OR FAILURE TO APPEAR IN AC11 TIONS IN CONNECTION WITH GOVERNMENT 

12 CONTRACTS. 

13 (a) IN GENERAL.—The Director of the Office of 

14 Management and Budget shall amend the Federal Acqui15 sition Regulation to provide that a contractor of the 

16 United States Government, whether a United States com17 pany or a foreign company, may be debarred or suspended 

18 from contracting with the United States Government 

19 under circumstances as follows: 

20 (1) If the contractor evades service of process 

21 in any suit brought against the contractor by the 

22 United States Government or a citizen or national of 

23 the United States in connection with the contractor’s 

24 performance of a contract with the United States 

25 Government. 


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1 (2) If the contractor refuses or fails to appear 

2 before a Federal court of the United States in a 

3 matter brought against the contractor by the United 

4 States Government or a citizen or national of the 

5 United States in connection with the contractor’s 

6 performance of a contract with the United States 

7 Government. 

8 (b) APPLICABILITY.—The amendment to the Federal 

9 Acquisition Regulation made pursuant to subsection (a) 

10 shall apply to any action of a contractor covered by such 

11 amendment that occurs on or after the effective date of 

12 such amendment. 

13 SEC. 6. DEFINITIONS. 

14 In this Act: 

15 (1) CONTRACTOR.—The term ‘‘contractor’’, 

16 with respect to a contract, includes the contractor 

17 under the contract, any subcontractor under the 

18 contract, any subordinate contractor under the con19 tract, and any employees thereof performing work 

20 under or in connection with the contract. 

21 (2) UNITED STATES.—The term ‘‘United 

22 States’’, in a geographic sense, means the several 

23 States and the District of Columbia. The term does 


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1 not include any military installation or facility lo2 cated outside the United States, as so defined. 

Æ 


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