II 

Calendar No. 485 

113TH CONGRESS 

2D SESSION S. 675 

[Report No. 113–216] 

To prohibit contracting with the enemy. 

IN THE SENATE OF THE UNITED STATES 

APRIL 9, 2013 

Ms. AYOTTE (for herself, Mr. BLUMENTHAL, Mr. ROBERTS, Mr. CHAMBLISS, 

Mr. MORAN, Mr. MANCHIN, Mr. BOOZMAN, Mr. BURR, Mrs. SHAHEEN, 

and Mr. VITTER) introduced the following bill; which was read twice and 

referred to the Committee on Homeland Security and Governmental Affairs 

JULY 23, 2014 

Reported by Mr. CARPER, with an amendment 

[Strike out all after the enacting clause and insert the part printed in italic] 

A BILL 

To prohibit contracting with the enemy. 

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

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Never Contract With 

5 the Enemy Act’’. 


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1 SEC. 2. PROHIBITION ON CONTRACTING WITH THE ENEMY. 

2 (a) STATEMENT OF POLICY.—It shall be the policy 

3 of the United States that executive agencies shall not con4 tract with the enemy or with a person or entity that has 

5 been identified as providing funds received under a con6 tract, grant, or cooperative agreement directly or indi7 rectly to an enemy of the United States or otherwise sup8 porting those who are actively opposing the United States 

9 or coalition forces in a contingency operation. 

10 (b) AUTHORITY TO TERMINATE OR VOID CON11 TRACTS, GRANTS, AND COOPERATIVE AGREEMENTS AND

12 TO RESTRICT FUTURE AWARD.— 

13 (1) IN GENERAL.—Not later than 30 days after 

14 the date of the enactment of this Act, the Federal 

15 Acquisition Regulation shall be revised to provide 

16 that, upon notice from a Senior Procurement Execu17 tive or the commander of a geographic combatant 

18 command under subsection (e)(3), the head of con19 tracting activity of an executive agency may do the 

20 following: 

21 (A) If the notice is that a person or entity 

22 has been identified as providing funds received 

23 under a contract, grant, or cooperative agree24 ment of the executive agency directly or indi25 rectly to an enemy of the United States or a 

26 person or entity who is actively supporting an 


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1 enemy of the United States or otherwise sup2 porting those who are actively opposing United 

3 States or coalition forces in a contingency oper4 ation— 

5 (i) either— 

6 (I) terminate for default the con7 tract, grant, or cooperative agreement; 

8 or 

9 (II) void the contract, grant, or 

10 cooperative agreement in whole or in 

11 part; and 

12 (ii) restrict the future award to the 

13 person or entity so identified of contracts, 

14 grants, or cooperative agreements of the 

15 executive agency. 

16 (B) If the notice is that the person or enti17 ty has failed to exercise due diligence to ensure 

18 that none of the funds received under a con19 tract, grant, or cooperative agreement of the ex20 ecutive entity are provided directly or indirectly 

21 to an enemy of the United States or a person 

22 or entity who is actively supporting an enemy of 

23 the United States or otherwise supporting those 

24 who are actively opposing United States or coa25 lition forces in a contingency operation, termiVerDate Mar 15 2010 01:05 Jul 24, 2014 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6401 E:\BILLS\S675.RS S675

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1 nate for default the contract, grant, or coopera2 tive agreement. 

3 (2) TREATMENT AS VOID.—For purposes of 

4 this section: 

5 (A) A contract, grant, or cooperative 

6 agreement that is void is unenforceable as con7 trary to public policy. 

8 (B) A contract, grant, or cooperative 

9 agreement that is void in part is unenforceable 

10 as contrary to public policy with regard to a 

11 segregable task or effort under the contract, 

12 grant, or cooperative agreement. 

13 (c) CONTRACT CLAUSE.— 

14 (1) IN GENERAL.—Not later than 30 days after 

15 the date of the enactment of this Act, the Federal 

16 Acquisition Regulation shall be revised to require 

17 that— 

18 (A) the clause described in paragraph (2) 

19 shall be included in each covered contract, 

20 grant, and cooperative agreement of an execu21 tive agency that is awarded on or after the date 

22 of the enactment of this Act; and 

23 (B) to the maximum extent practicable, 

24 each covered contract, grant, and cooperative 

25 agreement of an executive agency that is awardVerDate Mar 15 2010 01:05 Jul 24, 2014 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6401 E:\BILLS\S675.RS S675

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1 ed before the date of the enactment of this Act 

2 shall be modified to include the clause described 

3 in paragraph (2), other than the matter pro4 vided for in subparagraph (A) of that para5 graph. 

6 (2) CLAUSE DESCRIBED.—The clause described 

7 in this paragraph is a clause that— 

8 (A) requires the contractor, or the recipi9 ent of the grant or cooperative agreement, to 

10 certify in connection with entry into the con11 tract, grant, or cooperative agreement that the 

12 contractor or recipient, as the case may be, has 

13 never knowingly provided funds directly or indi14 rectly to an enemy of the United States or a 

15 person or entity who is actively supporting an 

16 enemy of the United States or otherwise know17 ingly supported those who are actively opposing 

18 United States or coalition forces in a contin19 gency operation; 

20 (B) requires the contractor, or the recipi21 ent of the grant or cooperative agreement, to 

22 exercise due diligence to ensure that none of the 

23 funds received under the contract, grant, or co24 operative agreement are provided directly or in25 directly to an enemy of the United States or a 


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1 person or entity who is actively supporting an 

2 enemy of the United States or otherwise sup3 porting those who are actively opposing United 

4 States or coalition forces in a contingency oper5 ation; and 

6 (C) notifies the contractor, or the recipient 

7 of the grant or cooperative agreement, of the 

8 authority of the head of the contracting activity 

9 to terminate or void the contract, grant, or co10 operative agreement, in whole or in part, as 

11 provided in subsection (b). 

12 (3) COVERED CONTRACT, GRANT, OR COOPERA13 TIVE AGREEMENT.—In this subsection, the term 

14 ‘‘covered contract, grant, or cooperative agreement’’ 

15 means a contract, grant, or cooperative agreement 

16 with an estimated value in excess of $20,000. 

17 (d) REQUIREMENTS FOLLOWING CONTRACT AC18 TIONS.—Not later than 30 days after the date of the en19 actment of this Act, the Federal Acquisition Regulation 

20 shall be revised as follows: 

21 (1) To require that any head of contracting ac22 tivity taking an action under subsection (b) to termi23 nate, void, or restrict a contract, grant, or coopera24 tive agreement notify in writing the contractor or reVerDate Mar 15 2010 01:05 Jul 24, 2014 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6401 E:\BILLS\S675.RS S675

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1 cipient of the grant or cooperative agreement, as ap2 plicable, of the action. 

3 (2) To permit, in such manner as the Federal 

4 Acquisition Regulation as so revised shall provide, 

5 the contractor or recipient of a grant or cooperative 

6 agreement subject to an action taken under sub7 section (b) to terminate or void the contract, grant, 

8 or cooperative agreement, as the case may be, an op9 portunity to contest the action within 30 days of re10 ceipt of notice of the action. 

11 (e) IDENTIFICATION OF SUPPORTERS OF THE

12 ENEMY.— 

13 (1) IDENTIFICATION.—Not later than 30 days 

14 after the date of the enactment of this Act, the Sec15 retary of Defense and each Senior Procurement Ex16 ecutive shall carry out a program to use available in17 telligence (including information made available pur18 suant to subsection (g)(1)) to— 

19 (A) either— 

20 (i) in the case of the geographic com21 batant commands, review persons and enti22 ties who receive United States funds 

23 through contracts, grants, and cooperative 

24 agreements performed for such commands 

25 in their areas of responsibility; or 


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1 (ii) in the case of the Senior Procure2 ment Executives, review persons and enti3 ties who receive United States funds 

4 through contracts, grants, and cooperative 

5 agreements performed for their agencies; 

6 and 

7 (B) identify any such persons and entities 

8 who are providing funds received under a con9 tract, grant, or cooperative agreement of an ex10 ecutive agency directly or indirectly to an 

11 enemy of the United States or a person or enti12 ty who is actively supporting an enemy of the 

13 United States or otherwise supporting those 

14 who are actively opposing United States or coa15 lition forces in a contingency operation. 

16 (2) DISCHARGE BY DOD THROUGH COM17 MANDERS OF COMBATANT COMMANDS.—The Sec18 retary of Defense shall carry out the program re19 quired by paragraph (1) through the commanders of 

20 the geographic combatant commands. 

21 (3) NOTIFICATION OF CONTRACTING ACTIVI22 TIES.—If a Senior Procurement Executive or the 

23 commander of a geographic combatant command, 

24 acting pursuant to a program required by paragraph 

25 (1), identifies a person or entity as actively supVerDate Mar 15 2010 01:05 Jul 24, 2014 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6401 E:\BILLS\S675.RS S675

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1 porting an enemy of the United States or otherwise 

2 supporting those who are actively opposing United 

3 States or coalition forces in a contingency operation, 

4 the Senior Procurement Executive or commander, as 

5 the case may be, shall notify the heads of con6 tracting activities of the executive agencies in writ7 ing of such identification. Any written notification 

8 pursuant to this paragraph shall be made in accord9 ance with procedures established to implement the 

10 revisions to the Federal Acquisition Regulation re11 quired by this section. 

12 (4) ANNUAL REVIEW.—As part of the programs 

13 required by paragraph (1), the Senior Procurement 

14 Executives and the commanders of the geographic 

15 combatant commands shall, on an annual basis, re16 view the lists of persons and entities previously cov17 ered by a notice under paragraph (3) as having been 

18 identified pursuant to paragraph (1)(B) in order to 

19 determine whether or not such persons and entities 

20 continue to warrant identification pursuant to para21 graph (1)(B). If a Senior Procurement Executive or 

22 commander determines pursuant to such a review 

23 that a person or entity no longer warrants identifica24 tion pursuant to paragraph (1)(B), the Senior Pro25 curement Executive or commander, as the case may 


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1 be, shall notify the heads of contracting activities of 

2 the executive agencies in writing of such determina3 tion. 

4 (5) PROTECTION OF CLASSIFIED INFORMA5 TION.—Classified information relied upon to make 

6 an identification in accordance with this subsection 

7 may not be disclosed to a contractor or a recipient 

8 of a grant or cooperative agreement with respect to 

9 which an action is taken pursuant to the authority 

10 provided in subsection (b), or to their representa11 tives, in the absence of a protective order issued by 

12 a court of competent jurisdiction established under 

13 Article I or Article III of the Constitution of the 

14 United States that specifically addresses the condi15 tions upon which such classified information may be 

16 so disclosed. 

17 (f) DELEGATION OF CERTAIN RESPONSIBILITIES.— 

18 (1) RESPONSIBILITY TO IDENTIFY AND PRO19 VIDE NOTICE.—A Senior Procurement Executive 

20 may delegate the responsibilities in paragraphs (1), 

21 (3), and (4) of subsection (e) to the designated dep22 uty of such Executive. The commander of a geo23 graphic combatant command may delegate the re24 sponsibilities in such paragraphs to the deputy com25 mander of that combatant command. Any delegation 


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1 of responsibilities under this paragraph shall be 

2 made in writing. 

3 (2) NONDELEGATION OF RESPONSIBILITY FOR

4 CONTRACT ACTIONS.—The authority provided by 

5 subsection (b) to terminate, void, or restrict con6 tracts, grants, and cooperative agreements may not 

7 be delegated below the level of head of contracting 

8 activity. 

9 (g) ADDITIONAL RESPONSIBILITIES OF EXECUTIVE

10 AGENCIES.— 

11 (1) DISSEMINATION OF INFORMATION ON SUP12 PORTERS OF THE ENEMY.—The Secretary of De13 fense and the Administrator for Federal Procure14 ment Policy shall jointly carry out a program 

15 through which the contracting activities of the exec16 utive agencies may provide information to Senior 

17 Procurement Executives and the commanders of the 

18 geographic combatant commands relating to persons 

19 or entities who may be providing funds received 

20 under contracts, grants, or cooperative agreements 

21 of the executive agencies directly or indirectly to an 

22 enemy of the United States or a person or entity 

23 who is actively supporting an enemy of the United 

24 States or otherwise supporting those who are ac25 tively opposing United States or coalition forces in 


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1 a contingency operation. The program shall be de2 signed to facilitate and encourage the sharing of in3 formation between executive agencies and the geo4 graphic combatant commands. 

5 (2) INCLUSION OF INFORMATION ON CONTRACT

6 ACTIONS IN FAPIIS.—Upon the termination, voiding, 

7 or restriction of a contract, grant, or cooperative 

8 agreement of an executive agency under subsection 

9 (b), the head of contracting activity of the executive 

10 agency shall provide for the inclusion in the Federal 

11 Awardee Performance and Integrity Information 

12 System (FAPIIS), or other formal system of records 

13 on contractors or entities, of appropriate information 

14 on the termination, voiding, or restriction, as the 

15 case may be, of the contract, grant, or cooperative 

16 agreement. 

17 (3) REPORTS.—The head of contracting activity 

18 that receives a notice pursuant to subsection (e)(3) 

19 shall submit to the Senior Procurement Executives 

20 and the commanders of the geographic combatant 

21 commands a report on the action, if any, taken by 

22 the head of contracting activity pursuant to sub23 section (b), including a determination not to termi24 nate, void, or restrict the contract, grant, or cooperVerDate Mar 15 2010 01:05 Jul 24, 2014 Jkt 039200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6401 E:\BILLS\S675.RS S675

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1 ative agreement as otherwise authorized by sub2 section (b). 

3 (h) REPORTS.— 

4 (1) IN GENERAL.—Not later than March 1 each 

5 year, the Secretary of Defense shall, in consultation 

6 with the heads of other executive agencies, submit to 

7 the appropriate committees of Congress a report on 

8 the use of the authorities in this section in the pre9 ceding calendar year, including the following: 

10 (A) For each instance in which an execu11 tive agency exercised the authority to terminate, 

12 void, or restrict a contract, grant, and coopera13 tive agreement pursuant to subsection (b), the 

14 following: 

15 (i) The executive agency taking such 

16 action. 

17 (ii) An explanation of the basis for the 

18 action taken. 

19 (iii) The value of the contract, grant, 

20 or cooperative agreement voided or termi21 nated. 

22 (iv) The value of all contracts, grants, 

23 or cooperative agreements of the executive 

24 agency in force with the person or entity 

25 concerned at the time the contract, grant, 


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1 or cooperative agreement was terminated 

2 or voided. 

3 (B) For each instance in which an execu4 tive agency did not exercise the authority to ter5 minate, void, or restrict a contract, grant, and 

6 cooperative agreement pursuant to subsection 

7 (b) as requested pursuant to subsection (e)(3), 

8 the following: 

9 (i) The executive agency concerned. 

10 (ii) An explanation why the action was 

11 not taken. 

12 (2) FORM.—Any report under this subsection 

13 may be submitted in classified form. 

14 (i) OTHER DEFINITIONS.—In this section: 

15 (1) The term ‘‘appropriate committees of Con16 gress’’ means— 

17 (A) the Committee on Armed Services, the 

18 Committee on Homeland Security and Govern19 mental Affairs, and the Committee on Appro20 priations of the Senate; and 

21 (B) the Committee on Armed Services, the 

22 Committee on Oversight and Government Re23 form, and the Committee on Appropriations of 

24 the House of Representatives. 


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1 (2) The term ‘‘combatant command’’ means a 

2 command established pursuant to chapter 6 of title 

3 10, United States Code. 

4 (3) The term ‘‘contingency operation’’ has the 

5 meaning given that term in section 101(a)(13) of 

6 title 10, United States Code. 

7 (4) The term ‘‘enemy of the United States’’ 

8 means any of the following: 

9 (A) Any person or organization determined 

10 by the Secretary of Defense or the Secretary of 

11 State to be hostile to United States forces or 

12 interests or providing support to any person or 

13 organization hostile to United States forces or 

14 interests during the time of a declared war, 

15 peacekeeping operation, or other military or 

16 contingency operation. 

17 (B) Any organization designated as a ter18 rorist organization under section 219(a) of the 

19 Immigration and Nationality Act (8 U.S.C. 

20 1189(a)). 

21 (5) The term ‘‘executive agency’’ has the mean22 ing given that term in section 133 of title 41, United 

23 States Code. 


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1 (6) The term ‘‘head of contracting activity’’ has 

2 the meaning given that term in subpart 601 of part 

3 1 of the Federal Acquisition Regulation. 

4 (7) The term ‘‘Senior Procurement Executive’’ 

5 has the meaning given that term in section 1702 of 

6 title 41, United States Code. 

7 (j) COORDINATION WITH CURRENT AUTHORITIES

8 APPLICABLE TO CENTCOM.— 

9 (1) REPEAL OF SUPERSEDED AUTHORITY.—Ef10 fective 30 days after the date of the enactment of 

11 this Act, section 841 of the National Defense Au12 thorization Act for Fiscal Year 2012 (Public Law 

13 112–81; 125 Stat. 1510; 10 U.S.C. 2302 note) is re14 pealed. 

15 (2) USE OF SUPERSEDED AUTHORITIES IN DIS16 CHARGE OF REQUIREMENTS.—In providing for the 

17 discharge of the requirements of this section by the 

18 Department of Defense, the Secretary of Defense 

19 may use and modify for that purpose requirements 

20 and procedures established by the Secretary for pur21 poses of the discharge of the requirements of section 

22 841 of the National Defense Authorization Act for 

23 Fiscal Year 2012. 


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Never Contract With 

3 the Enemy Act’’. 

4 SEC. 2. PROHIBITION ON PROVIDING FUNDS TO THE 

5 ENEMY. 

6 (a) IDENTIFICATION OF PERSONS AND ENTITIES.— 

7 The Secretary of Defense shall, in conjunction with the Di8 rector of National Intelligence and in consultation with the 

9 Secretary of State, establish in each covered combatant com10 mand a program to identify persons and entities within 

11 the area of responsibility of such command that— 

12 (1) provide funds, including goods and services, 

13 received under a contract, grant, or cooperative agree14 ment of an executive agency directly or indirectly to 

15 a covered person or entity; or 

16 (2) fail to exercise due diligence to ensure that 

17 none of the funds, including goods and services, re18 ceived under a contract, grant, or cooperative agree19 ment of an executive agency are provided directly or 

20 indirectly to a covered person or entity. 

21 (b) NOTICE OF IDENTIFIED PERSONS AND ENTI22 TIES.— 

23 (1) NOTICE.—Upon the identification of a per24 son or entity as being described by subsection (a), the 

25 head of an executive agency (or the designee of such 

26 head) or the commander of a covered combatant comVerDate Mar 15 2010 01:05 Jul 24, 2014 Jkt 039200 PO 00000 Frm 00017 Fmt 6652 Sfmt 6203 E:\BILLS\S675.RS S675

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1 mand (or the specified deputies of the commander) 

2 shall be notified, in writing, of such identification of 

3 the person or entity. 

4 (2) RESPONSIVE ACTIONS.—Upon receipt of a 

5 notice under paragraph (1), the head of an executive 

6 agency (or the designee of such head) or the com7 mander of a covered combatant command (or the 

8 specified deputies of the commander) may notify the 

9 heads of contracting activities, or other appropriate 

10 officials of the agency or command, in writing of such 

11 identification. 

12 (3) MAKING OF NOTIFICATIONS.—Any written 

13 notification pursuant to this subsection shall be made 

14 in accordance with procedures established to imple15 ment the revisions of regulations required by this sec16 tion. 

17 (c) AUTHORITY TO TERMINATE OR VOID CONTRACTS, 

18 GRANTS, AND COOPERATIVE AGREEMENTS AND TO RE19 STRICT FUTURE AWARD.—Not later than 270 days after 

20 the date of the enactment of this Act, the Federal Acquisi21 tion Regulation, the Defense Federal Acquisition Regula22 tion Supplement, and the Uniform Administrative Require23 ments, Cost Principles, and Account Requirements for Fed24 eral Awards shall be revised to provide that, upon notice 

25 from the head of an executive agency (or the designee of 


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1 such head) or the commander of a covered combatant com2 mand (or the specified deputies of the commander) pursu3 ant to subsection (b), the head of contracting activity of an 

4 executive agency, or other appropriate official, may do the 

5 following: 

6 (1) Restrict the award of contracts, grants, or co7 operative agreements of the executive agency con8 cerned upon a written determination by the head of 

9 contracting activity or other appropriate official that 

10 the contract, grant, or cooperative agreement would 

11 provide funds received under such contract, grant, or 

12 cooperative agreement directly or indirectly to a cov13 ered person or entity. 

14 (2) Terminate for default any contract, grant, or 

15 cooperative agreement of the executive agency con16 cerned upon a written determination by the head of 

17 contracting activity or other appropriate official that 

18 the contractor, or the recipient of the grant or cooper19 ative agreement, has failed to exercise due diligence to 

20 ensure that none of the funds received under the con21 tract, grant, or cooperative agreement are provided 

22 directly or indirectly to a covered person or entity. 

23 (3) Void in whole or in part any contract, grant, 

24 or cooperative agreement of the executive agency con25 cerned upon a written determination by the head of 


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1 contracting activity or other appropriate official that 

2 the contract, grant, or cooperative agreement provides 

3 funds directly or indirectly to a covered person or en4 tity. 

5 (d) CLAUSE.— 

6 (1) IN GENERAL.—Not later than 270 days after 

7 the date of the enactment of this Act, the Federal Ac8 quisition Regulation, the Defense Federal Acquisition 

9 Regulation Supplement, and the Uniform Adminis10 trative Requirements, Cost Principles, and Account 

11 Requirements for Federal Awards shall be revised to 

12 require that— 

13 (A) the clause described in paragraph (2) 

14 shall be included in each covered contract, grant, 

15 and cooperative agreement of an executive agen16 cy that is awarded on or after the date that is 

17 270 days after the date of the enactment of this 

18 Act; and 

19 (B) to the maximum extent practicable, 

20 each covered contract, grant, and cooperative 

21 agreement of an executive agency that is award22 ed before the date of the enactment of this Act 

23 shall be modified to include the clause described 

24 in paragraph (2). 


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1 (2) CLAUSE DESCRIBED.—The clause described 

2 in this paragraph is a clause that— 

3 (A) requires the contractor, or the recipient 

4 of the grant or cooperative agreement, to exercise 

5 due diligence to ensure that none of the funds, 

6 including goods and services, received under the 

7 contract, grant, or cooperative agreement are 

8 provided directly or indirectly to a covered per9 son or entity; and 

10 (B) notifies the contractor, or the recipient 

11 of the grant or cooperative agreement, of the au12 thority of the head of the contracting activity, or 

13 other appropriate official, to terminate or void 

14 the contract, grant, or cooperative agreement, in 

15 whole or in part, as provided in subsection (c). 

16 (3) TREATMENT AS VOID.—For purposes of this 

17 section: 

18 (A) A contract, grant, or cooperative agree19 ment that is void is unenforceable as contrary to 

20 public policy. 

21 (B) A contract, grant, or cooperative agree22 ment that is void in part is unenforceable as 

23 contrary to public policy with regard to a seg24 regable task or effort under the contract, grant, 

25 or cooperative agreement. 


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1 (4) PUBLIC COMMENT.—The President shall en2 sure that the process for amending regulations re3 quired by paragraph (1) shall include an opportunity 

4 for public comment, including an opportunity for 

5 comment on standards of due diligence required by 

6 this Act. 

7 (e) REQUIREMENTS FOLLOWING CONTRACT AC8 TIONS.—Not later than 270 days after the date of the enact9 ment of this Act, the Federal Acquisition Regulation, the 

10 Defense Federal Acquisition Regulation Supplement, and 

11 the Uniform Administrative Requirements, Cost Principles, 

12 and Account Requirements for Federal Awards shall be re13 vised as follows: 

14 (1) To require that any head of contracting ac15 tivity, or other appropriate official, taking an action 

16 under subsection (c) to terminate, void, or restrict a 

17 contract, grant, or cooperative agreement notify in 

18 writing the contractor or recipient of the grant or co19 operative agreement, as applicable, of the action. 

20 (2) To permit the contractor or recipient of a 

21 grant or cooperative agreement subject to an action 

22 taken under subsection (c) to terminate or void the 

23 contract, grant, or cooperative agreement, as the case 

24 may be, an opportunity to challenge the action by re25 questing an administrative review of the action under 


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1 the procedures of the executive agency concerned not 

2 later than 30 days after receipt of notice of the action. 

3 (f) ANNUAL REVIEW; PROTECTION OF CLASSIFIED IN4 FORMATION.— 

5 (1) ANNUAL REVIEW.—The Secretary of Defense, 

6 in conjunction with the Director of National Intel7 ligence and in consultation with the Secretary of 

8 State shall, on an annual basis, review the lists of 

9 persons and entities previously covered by a notice 

10 under subsection (b) as having been identified as de11 scribed by subsection (a) in order to determine wheth12 er or not such persons and entities continue to war13 rant identification as described by subsection (a). If 

14 a determination is made pursuant to such a review 

15 that a person or entity no longer warrants identifica16 tion as described by subsection (a), the Secretary of 

17 Defense shall notify the head of an executive agency 

18 (or designee) or commander (or deputy), as the case 

19 may be, in writing of such determination. 

20 (2) PROTECTION OF CLASSIFIED INFORMATION.— 

21 Classified information relied upon to make an identi22 fication in accordance with subsection (a) may not be 

23 disclosed to a contractor or a recipient of a grant or 

24 cooperative agreement with respect to which an action 

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1 section (c), or to their representatives, in the absence 

2 of a protective order issued by a court of competent 

3 jurisdiction established under Article I or Article III 

4 of the Constitution of the United States that specifi5 cally addresses the conditions upon which such classi6 fied information may be so disclosed. 

7 (g) DELEGATION OF CERTAIN RESPONSIBILITIES.— 

8 (1) COMBATANT COMMAND RESPONSIBILITIES.— 

9 The commander of a covered combatant command 

10 may delegate the responsibilities in this section to any 

11 deputies of the commander specified by the com12 mander for purposes of this section. Any delegation of 

13 responsibilities under this paragraph shall be made 

14 in writing. 

15 (2) NONDELEGATION OF RESPONSIBILITY FOR

16 CERTAIN ACTIONS.—The authority provided by sub17 section (c) to terminate, void, or restrict contracts, 

18 grants, and cooperative agreements, in whole or in 

19 part, may not be delegated below the level of head of 

20 contracting activity, or equivalent official for pur21 poses of grants or cooperative agreements. 

22 (h) ADDITIONAL RESPONSIBILITIES OF EXECUTIVE

23 AGENCIES.— 

24 (1) SHARING OF INFORMATION ON SUPPORTERS

25 OF THE ENEMY.—The Secretary of Defense shall, in 


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1 consultation with the Director of the Office of Man2 agement and Budget, carry out a program through 

3 which agency components may provide information to 

4 heads of executive agencies (or the designees of such 

5 heads) and the commanders of the covered combatant 

6 commands (or the specified deputies of the com7 manders) relating to persons or entities who may be 

8 providing funds, including goods and services, re9 ceived under contracts, grants, or cooperative agree10 ments of the executive agencies directly or indirectly 

11 to a covered person or entity. The program shall be 

12 designed to facilitate and encourage the sharing of 

13 risk and threat information between executive agen14 cies and the covered combatant commands. 

15 (2) INCLUSION OF INFORMATION ON CONTRACT

16 ACTIONS IN FAPIIS AND OTHER SYSTEMS.—Upon the 

17 termination, voiding, or restriction of a contract, 

18 grant, or cooperative agreement of an executive agen19 cy under subsection (c), the head of contracting activ20 ity of the executive agency shall provide for the inclu21 sion in the Federal Awardee Performance and Integ22 rity Information System (FAPIIS), or other formal 

23 system of records on contractors or entities, of appro24 priate information on the termination, voiding, or reVerDate Mar 15 2010 01:05 Jul 24, 2014 Jkt 039200 PO 00000 Frm 00025 Fmt 6652 Sfmt 6203 E:\BILLS\S675.RS S675

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1 striction, as the case may be, of the contract, grant, 

2 or cooperative agreement. 

3 (3) REPORTS.—The head of contracting activity 

4 that receives a notice pursuant to subsection (b) shall 

5 submit to the head of the executive agency (or des6 ignee) concerned or the appropriate covered combat7 ant command, as the case may be, a report on the ac8 tion, if any, taken by the head of contracting activity 

9 pursuant to subsection (c), including a determination 

10 not to terminate, void, or restrict the contract, grant, 

11 or cooperative agreement as otherwise authorized by 

12 subsection (c). 

13 (i) REPORTS.— 

14 (1) IN GENERAL.—Not later than March 1 of 

15 2016, 2017, and 2018, the Director of the Office of 

16 Management and Budget shall submit to the appro17 priate committees of Congress a report on the use of 

18 the authorities in this section in the preceding cal19 endar year, including the following: 

20 (A) For each instance in which an executive 

21 agency exercised the authority to terminate, void, 

22 or restrict a contract, grant, and cooperative 

23 agreement pursuant to subsection (c), based on a 

24 notification under subsection (b), the following: 


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1 (i) The executive agency taking such 

2 action. 

3 (ii) An explanation of the basis for the 

4 action taken. 

5 (iii) The value of the contract, grant, 

6 or cooperative agreement voided or termi7 nated. 

8 (iv) The value of all contracts, grants, 

9 or cooperative agreements of the executive 

10 agency in force with the person or entity 

11 concerned at the time the contract, grant, or 

12 cooperative agreement was terminated or 

13 voided. 

14 (B) For each instance in which an executive 

15 agency did not exercise the authority to termi16 nate, void, or restrict a contract, grant, and co17 operative agreement pursuant to subsection (c), 

18 based on a notification under subsection (b), the 

19 following: 

20 (i) The executive agency concerned. 

21 (ii) An explanation why the action 

22 was not taken. 

23 (2) FORM.—Any report under this subsection 

24 may, at the election of the Director— 


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1 (A) be submitted in unclassified form, but 

2 with a classified annex; or 

3 (B) be submitted in classified form. 

4 (j) NATIONAL SECURITY EXCEPTION.—Nothing in this 

5 section shall apply to the authorized intelligence or law en6 forcement activities of the United States Government. 

7 (k) CONSTRUCTION WITH OTHER AUTHORITIES.—Ex8 cept as provided in subsection (l), the authorities in this 

9 section shall be in addition to, and not to the exclusion of, 

10 any other authorities available to executive agencies to im11 plement policies and purposes similar to those set forth in 

12 this section. 

13 (l) COORDINATION WITH CURRENT AUTHORITIES.— 

14 (1) REPEAL OF SUPERSEDED AUTHORITY RE15 LATED TO CENTCOM.—Effective 270 days after the 

16 date of the enactment of this Act, section 841 of the 

17 National Defense Authorization Act for Fiscal Year 

18 2012 (Public Law 112–81; 125 Stat. 1513; 10 U.S.C. 

19 2313 note) is repealed. 

20 (2) REPEAL OF SUPERSEDED AUTHORITY RE21 LATED TO DEPARTMENT OF DEFENSE.—Effective 270 

22 days after the date of the enactment of this Act, sec23 tion 831 of the National Defense Authorization Act 

24 for Fiscal Year 2014 (Public Law 113–66; 127 Stat. 

25 810; 10 U.S.C. 2302 note) is repealed. 


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1 (3) USE OF SUPERSEDED AUTHORITIES IN DIS2 CHARGE OF REQUIREMENTS.—In providing for the 

3 discharge of the requirements of this section by the 

4 Department of Defense, the Secretary of Defense may 

5 use and modify for that purpose the regulations and 

6 procedures established for purposes of the discharge of 

7 the requirements of section 841 of the National De8 fense Authorization Act for Fiscal Year 2012 and sec9 tion 831 of the National Defense Authorization Act 

10 for Fiscal Year 2014. 

11 (m) SUNSET.—The provisions of this section shall 

12 cease to be effective on December 31, 2019. 

13 SEC. 3. ADDITIONAL ACCESS TO RECORDS. 

14 (a) CONTRACTS, GRANTS, AND COOPERATIVE AGREE15 MENTS.— 

16 (1) IN GENERAL.—Not later than 270 days after 

17 the date of the enactment of this Act, applicable regu18 lations shall be revised to provide that the clause de19 scribed in paragraph (2) may, as appropriate, be in20 cluded in each covered contract, grant, and coopera21 tive agreement of an executive agency that is awarded 

22 on or after the date of the enactment of this Act. 

23 (2) CLAUSE.—The clause described in this para24 graph is a clause authorizing the head of the executive 

25 agency concerned, upon a written determination purVerDate Mar 15 2010 01:05 Jul 24, 2014 Jkt 039200 PO 00000 Frm 00029 Fmt 6652 Sfmt 6203 E:\BILLS\S675.RS S675

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1 suant to paragraph (3), to examine any records of the 

2 contractor, the recipient of a grant or cooperative 

3 agreement, or any subcontractor or subgrantee under 

4 such contract, grant, or cooperative agreement to the 

5 extent necessary to ensure that funds, including goods 

6 and services, available under the contract, grant, or 

7 cooperative agreement are not provided directly or in8 directly to a covered person or entity. 

9 (3) WRITTEN DETERMINATION.—The authority 

10 to examine records pursuant to the contract clause de11 scribed in paragraph (2) may be exercised only upon 

12 a written determination by the contracting officer or 

13 comparable official responsible for a grant or coopera14 tive agreement, upon a finding by the commander of 

15 a covered combatant command (or the specified depu16 ties of the commander) or the head of an executive 

17 agency (or the designee of such head) that there is 

18 reason to believe that funds, including goods and serv19 ices, available under the contract, grant, or coopera20 tive agreement concerned may have been provided di21 rectly or indirectly to a covered person or entity. 

22 (4) FLOWDOWN.—A clause described in para23 graph (2) may also be included in any subcontract or 

24 subgrant under a covered contract, grant, or cooperaVerDate Mar 15 2010 01:05 Jul 24, 2014 Jkt 039200 PO 00000 Frm 00030 Fmt 6652 Sfmt 6203 E:\BILLS\S675.RS S675

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1 tive agreement if the subcontract or subgrant has an 

2 estimated value in excess of $50,000. 

3 (b) REPORTS.— 

4 (1) IN GENERAL.—Not later than March 1 of 

5 2016, 2017, and 2018, the Director of the Office of 

6 Management and Budget shall submit to the appro7 priate committees of Congress a report on the use of 

8 the authority provided by this section in the pre9 ceding calendar year. 

10 (2) ELEMENTS.—Each report under this sub11 section shall identify, for the calendar year covered by 

12 such report, each instance in which an executive 

13 agency exercised the authority provided under this 

14 section to examine records, explain the basis for the 

15 action taken, and summarize the results of any exam16 ination of records so undertaken. 

17 (3) FORM.—Any report under this subsection 

18 may be submitted in classified form. 

19 (c) COORDINATION WITH CURRENT AUTHORITIES AP20 PLICABLE TO CENTCOM.— 

21 (1) REPEAL OF SUPERSEDED AUTHORITY.—Ef22 fective 270 days after the date of the enactment of this 

23 Act, section 842 of the National Defense Authorization 

24 Act for Fiscal Year 2012 (Public Law 112–81; 125 

25 Stat. 1510; 10 U.S.C. 2302 note) is repealed. 


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1 (2) USE OF SUPERSEDED AUTHORITIES IN DIS2 CHARGE OF REQUIREMENTS.—In providing for the 

3 discharge of the requirements of this section by the 

4 Department of Defense, the Secretary of Defense may 

5 use and modify for that purpose requirements and 

6 procedures established by the Secretary for purposes of 

7 the discharge of the requirements of section 842 of the 

8 National Defense Authorization Act for Fiscal Year 

9 2012. 

10 SEC. 4. DEFINITIONS. 

11 In this Act: 

12 (1) APPROPRIATE COMMITTEES OF CONGRESS.— 

13 The term ‘‘appropriate committees of Congress’’ 

14 means— 

15 (A) the Committee on Armed Services, the 

16 Committee on Homeland Security and Govern17 mental Affairs, the Committee on Foreign Rela18 tions, and the Committee on Appropriations of 

19 the Senate; and 

20 (B) the Committee on Armed Services, the 

21 Committee on Oversight and Government Re22 form, the Committee on Foreign Affairs, and the 

23 Committee on Appropriations of the House of 

24 Representatives. 


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1 (2) CONTINGENCY OPERATION.—The term ‘‘con2 tingency operation’’ has the meaning given that term 

3 in section 101(a)(13) of title 10, United States Code. 

4 (3) CONTRACT.—The term ‘‘contract’’ includes a 

5 contract for commercial items but is not limited to a 

6 contract for commercial items. 

7 (4) COVERED COMBATANT COMMAND.—The term 

8 ‘‘covered combatant command’’ means the following: 

9 (A) The United States Africa Command. 

10 (B) The United States Central Command. 

11 (C) The United States European Command. 

12 (D) The United States Pacific Command. 

13 (E) The United States Southern Command. 

14 (5) COVERED CONTRACT, GRANT, OR COOPERA15 TIVE AGREEMENT DEFINED.—The term ‘‘covered con16 tract, grant, or cooperative agreement’’ means a con17 tract, grant, or cooperative agreement with an esti18 mated value in excess of $50,000 that is performed 

19 outside the United States, including its possessions 

20 and territories. 

21 (6) COVERED PERSON OR ENTITY.—The term 

22 ‘‘covered person or entity’’ means a person or entity 

23 that is actively opposing United States or coalition 

24 forces involved in a contingency operation in which 


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1 members of the Armed Forces are actively engaged in 

2 hostilities. 

3 (7) EXECUTIVE AGENCY.—The term ‘‘executive 

4 agency’’ has the meaning given that term in section 

5 133 of title 41, United States Code. 

6 (8) HEAD OF CONTRACTING ACTIVITY.—The term 

7 ‘‘head of contracting activity’’ has the meaning given 

8 that term in subpart 601 of part 1 of the Federal Ac9 quisition Regulation. 


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Calendar No. 485 

113TH CONGRESS 

2D SESSION S. 675 

[Report No. 113–216] 

A BILL 

To prohibit contracting with the enemy. 

JULY 23, 2014 

Reported with an amendment 


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