II 

113TH CONGRESS 

1ST SESSION S. 675 

To prohibit contracting with the enemy. 

IN THE SENATE OF THE UNITED STATES 

APRIL 9, 2013 

Ms. AYOTTE (for herself and Mr. BLUMENTHAL) introduced the following bill; 

which was read twice and referred to the Committee on Homeland Security and Governmental Affairs 

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’’. 

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

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

8 of the United States that executive agencies shall not con9 tract with the enemy or with a person or entity that has 

10 been identified as providing funds received under a con11 tract, grant, or cooperative agreement directly or indiVerDate Mar 15 2010 01:59 Apr 10, 2013 Jkt 029200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S675.IS S675

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

3 or coalition forces in a contingency operation. 

4 (b) AUTHORITY TO TERMINATE OR VOID CON5 TRACTS, GRANTS, AND COOPERATIVE AGREEMENTS AND

6 TO RESTRICT FUTURE AWARD.— 

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

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

9 Acquisition Regulation shall be revised to provide 

10 that, upon notice from a Senior Procurement Execu11 tive or the commander of a geographic combatant 

12 command under subsection (e)(3), the head of con13 tracting activity of an executive agency may do the 

14 following: 

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

16 has been identified as providing funds received 

17 under a contract, grant, or cooperative agree18 ment of the executive agency directly or indi19 rectly to an enemy of the United States or a 

20 person or entity who is actively supporting an 

21 enemy of the United States or otherwise sup22 porting those who are actively opposing United 

23 States or coalition forces in a contingency oper24 ation— 

25 (i) either— 


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1 (I) terminate for default the con2 tract, grant, or cooperative agreement; 

3 or 

4 (II) void the contract, grant, or 

5 cooperative agreement in whole or in 

6 part; and 

7 (ii) restrict the future award to the 

8 person or entity so identified of contracts, 

9 grants, or cooperative agreements of the 

10 executive agency. 

11 (B) If the notice is that the person or enti12 ty has failed to exercise due diligence to ensure 

13 that none of the funds received under a con14 tract, grant, or cooperative agreement of the ex15 ecutive entity are provided directly or indirectly 

16 to an enemy of the United States or a person 

17 or entity who is actively supporting an enemy of 

18 the United States or otherwise supporting those 

19 who are actively opposing United States or coa20 lition forces in a contingency operation, termi21 nate for default the contract, grant, or coopera22 tive agreement. 

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

24 this section: 


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1 (A) A contract, grant, or cooperative 

2 agreement that is void is unenforceable as con3 trary to public policy. 

4 (B) A contract, grant, or cooperative 

5 agreement that is void in part is unenforceable 

6 as contrary to public policy with regard to a 

7 segregable task or effort under the contract, 

8 grant, or cooperative agreement. 

9 (c) CONTRACT CLAUSE.— 

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

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

12 Acquisition Regulation shall be revised to require 

13 that— 

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

15 shall be included in each covered contract, 

16 grant, and cooperative agreement of an execu17 tive agency that is awarded on or after the date 

18 of the enactment of this 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), other than the matter proVerDate Mar 15 2010 01:59 Apr 10, 2013 Jkt 029200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S675.IS S675

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1 vided for in subparagraph (A) of that para2 graph. 

3 (2) CLAUSE DESCRIBED.—The clause described 

4 in this paragraph is a clause that— 

5 (A) requires the contractor, or the recipi6 ent of the grant or cooperative agreement, to 

7 certify in connection with entry into the con8 tract, grant, or cooperative agreement that the 

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

10 never knowingly provided funds directly or indi11 rectly to an enemy of the United States or a 

12 person or entity who is actively supporting an 

13 enemy of the United States or otherwise know14 ingly supported those who are actively opposing 

15 United States or coalition forces in a contin16 gency operation; 

17 (B) requires the contractor, or the recipi18 ent of the grant or cooperative agreement, to 

19 exercise due diligence to ensure that none of the 

20 funds received under the contract, grant, or co21 operative agreement are provided directly or in22 directly to an enemy of the United States or a 

23 person or entity who is actively supporting an 

24 enemy of the United States or otherwise sup25 porting those who are actively opposing United 


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1 States or coalition forces in a contingency oper2 ation; and 

3 (C) notifies the contractor, or the recipient 

4 of the grant or cooperative agreement, of the 

5 authority of the head of the contracting activity 

6 to terminate or void the contract, grant, or co7 operative agreement, in whole or in part, as 

8 provided in subsection (b). 

9 (3) COVERED CONTRACT, GRANT, OR COOPERA10 TIVE AGREEMENT.—In this subsection, the term 

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

12 means a contract, grant, or cooperative agreement 

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

14 (d) REQUIREMENTS FOLLOWING CONTRACT AC15 TIONS.—Not later than 30 days after the date of the en16 actment of this Act, the Federal Acquisition Regulation 

17 shall be revised as follows: 

18 (1) To require that any head of contracting ac19 tivity taking an action under subsection (b) to termi20 nate, void, or restrict a contract, grant, or coopera21 tive agreement notify in writing the contractor or re22 cipient of the grant or cooperative agreement, as ap23 plicable, of the action. 

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

25 Acquisition Regulation as so revised shall provide, 


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1 the contractor or recipient of a grant or cooperative 

2 agreement subject to an action taken under sub3 section (b) to terminate or void the contract, grant, 

4 or cooperative agreement, as the case may be, an op5 portunity to contest the action within 30 days of re6 ceipt of notice of the action. 

7 (e) IDENTIFICATION OF SUPPORTERS OF THE

8 ENEMY.— 

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

10 after the date of the enactment of this Act, the Sec11 retary of Defense and each Senior Procurement Ex12 ecutive shall carry out a program to use available in13 telligence (including information made available pur14 suant to subsection (g)(1)) to— 

15 (A) either— 

16 (i) in the case of the geographic com17 batant commands, review persons and enti18 ties who receive United States funds 

19 through contracts, grants, and cooperative 

20 agreements performed for such commands 

21 in their areas of responsibility; or 

22 (ii) in the case of the Senior Procure23 ment Executives, review persons and enti24 ties who receive United States funds 

25 through contracts, grants, and cooperative 


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1 agreements performed for their agencies; 

2 and 

3 (B) identify any such persons and entities 

4 who are providing funds received under a con5 tract, grant, or cooperative agreement of an ex6 ecutive agency directly or indirectly to an 

7 enemy of the United States or a person or enti8 ty who is actively supporting an enemy of the 

9 United States or otherwise supporting those 

10 who are actively opposing United States or coa11 lition forces in a contingency operation. 

12 (2) DISCHARGE BY DOD THROUGH COM13 MANDERS OF COMBATANT COMMANDS.—The Sec14 retary of Defense shall carry out the program re15 quired by paragraph (1) through the commanders of 

16 the geographic combatant commands. 

17 (3) NOTIFICATION OF CONTRACTING ACTIVI18 TIES.—If a Senior Procurement Executive or the 

19 commander of a geographic combatant command, 

20 acting pursuant to a program required by paragraph 

21 (1), identifies a person or entity as actively sup22 porting an enemy of the United States or otherwise 

23 supporting those who are actively opposing United 

24 States or coalition forces in a contingency operation, 

25 the Senior Procurement Executive or commander, as 


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1 the case may be, shall notify the heads of con2 tracting activities of the executive agencies in writ3 ing of such identification. Any written notification 

4 pursuant to this paragraph shall be made in accord5 ance with procedures established to implement the 

6 revisions to the Federal Acquisition Regulation re7 quired by this section. 

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

9 required by paragraph (1), the Senior Procurement 

10 Executives and the commanders of the geographic 

11 combatant commands shall, on an annual basis, re12 view the lists of persons and entities previously cov13 ered by a notice under paragraph (3) as having been 

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

15 determine whether or not such persons and entities 

16 continue to warrant identification pursuant to para17 graph (1)(B). If a Senior Procurement Executive or 

18 commander determines pursuant to such a review 

19 that a person or entity no longer warrants identifica20 tion pursuant to paragraph (1)(B), the Senior Pro21 curement Executive or commander, as the case may 

22 be, shall notify the heads of contracting activities of 

23 the executive agencies in writing of such determina24 tion. 


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1 (5) PROTECTION OF CLASSIFIED INFORMA2 TION.—Classified information relied upon to make 

3 an identification in accordance with this subsection 

4 may not be disclosed to a contractor or a recipient 

5 of a grant or cooperative agreement with respect to 

6 which an action is taken pursuant to the authority 

7 provided in subsection (b), or to their representa8 tives, in the absence of a protective order issued by 

9 a court of competent jurisdiction established under 

10 Article I or Article III of the Constitution of the 

11 United States that specifically addresses the condi12 tions upon which such classified information may be 

13 so disclosed. 

14 (f) DELEGATION OF CERTAIN RESPONSIBILITIES.— 

15 (1) RESPONSIBILITY TO IDENTIFY AND PRO16 VIDE NOTICE.—A Senior Procurement Executive 

17 may delegate the responsibilities in paragraphs (1), 

18 (3), and (4) of subsection (e) to the designated dep19 uty of such Executive. The commander of a geo20 graphic combatant command may delegate the re21 sponsibilities in such paragraphs to the deputy com22 mander of that combatant command. Any delegation 

23 of responsibilities under this paragraph shall be 

24 made in writing. 


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1 (2) NONDELEGATION OF RESPONSIBILITY FOR

2 CONTRACT ACTIONS.—The authority provided by 

3 subsection (b) to terminate, void, or restrict con4 tracts, grants, and cooperative agreements may not 

5 be delegated below the level of head of contracting 

6 activity. 

7 (g) ADDITIONAL RESPONSIBILITIES OF EXECUTIVE

8 AGENCIES.— 

9 (1) DISSEMINATION OF INFORMATION ON SUP10 PORTERS OF THE ENEMY.—The Secretary of De11 fense and the Administrator for Federal Procure12 ment Policy shall jointly carry out a program 

13 through which the contracting activities of the exec14 utive agencies may provide information to Senior 

15 Procurement Executives and the commanders of the 

16 geographic combatant commands relating to persons 

17 or entities who may be providing funds received 

18 under contracts, grants, or cooperative agreements 

19 of the executive agencies directly or indirectly to an 

20 enemy of the United States or a person or entity 

21 who is actively supporting an enemy of the United 

22 States or otherwise supporting those who are ac23 tively opposing United States or coalition forces in 

24 a contingency operation. The program shall be de25 signed to facilitate and encourage the sharing of inVerDate Mar 15 2010 01:59 Apr 10, 2013 Jkt 029200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S675.IS S675

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1 formation between executive agencies and the geo2 graphic combatant commands. 

3 (2) INCLUSION OF INFORMATION ON CONTRACT

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

5 or restriction of a contract, grant, or cooperative 

6 agreement of an executive agency under subsection 

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

8 agency shall provide for the inclusion in the Federal 

9 Awardee Performance and Integrity Information 

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

11 on contractors or entities, of appropriate information 

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

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

14 agreement. 

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

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

17 shall submit to the Senior Procurement Executives 

18 and the commanders of the geographic combatant 

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

20 the head of contracting activity pursuant to sub21 section (b), including a determination not to termi22 nate, void, or restrict the contract, grant, or cooper23 ative agreement as otherwise authorized by sub24 section (b). 

25 (h) REPORTS.— 


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

2 year, the Secretary of Defense shall, in consultation 

3 with the heads of other executive agencies, submit to 

4 the appropriate committees of Congress a report on 

5 the use of the authorities in this section in the pre6 ceding calendar year, including the following: 

7 (A) For each instance in which an execu8 tive agency exercised the authority to terminate, 

9 void, or restrict a contract, grant, and coopera10 tive agreement pursuant to subsection (b), the 

11 following: 

12 (i) The executive agency taking such 

13 action. 

14 (ii) An explanation of the basis for the 

15 action taken. 

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

17 or cooperative agreement voided or termi18 nated. 

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

20 or cooperative agreements of the executive 

21 agency in force with the person or entity 

22 concerned at the time the contract, grant, 

23 or cooperative agreement was terminated 

24 or voided. 


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1 (B) For each instance in which an execu2 tive agency did not exercise the authority to ter3 minate, void, or restrict a contract, grant, and 

4 cooperative agreement pursuant to subsection 

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

6 the following: 

7 (i) The executive agency concerned. 

8 (ii) An explanation why the action was 

9 not taken. 

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

11 may be submitted in classified form. 

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

13 (1) The term ‘‘appropriate committees of Con14 gress’’ means— 

15 (A) the Committee on Armed Services, the 

16 Committee on Homeland Security and Govern17 mental Affairs, and the Committee on Appro18 priations of the Senate; and 

19 (B) the Committee on Armed Services, the 

20 Committee on Oversight and Government Re21 form, and the Committee on Appropriations of 

22 the House of Representatives. 

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

24 command established pursuant to chapter 6 of title 

25 10, United States Code. 


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

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

3 title 10, United States Code. 

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

5 means any of the following: 

6 (A) Any person or organization determined 

7 by the Secretary of Defense or the Secretary of 

8 State to be hostile to United States forces or 

9 interests or providing support to any person or 

10 organization hostile to United States forces or 

11 interests during the time of a declared war, 

12 peacekeeping operation, or other military or 

13 contingency operation. 

14 (B) Any organization designated as a ter15 rorist organization under section 219(a) of the 

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

17 1189(a)). 

18 (5) The term ‘‘executive agency’’ has the mean19 ing given that term in section 133 of title 41, United 

20 States Code. 

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

22 the meaning given that term in subpart 601 of part 

23 1 of the Federal Acquisition Regulation. 


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

2 has the meaning given that term in section 1702 of 

3 title 41, United States Code. 

4 (j) COORDINATION WITH CURRENT AUTHORITIES

5 APPLICABLE TO CENTCOM.— 

6 (1) REPEAL OF SUPERSEDED AUTHORITY.—Ef7 fective 30 days after the date of the enactment of 

8 this Act, section 841 of the National Defense Au9 thorization Act for Fiscal Year 2012 (Public Law 

10 112–81; 125 Stat. 1510; 10 U.S.C. 2302 note) is re11 pealed. 

12 (2) USE OF SUPERSEDED AUTHORITIES IN DIS13 CHARGE OF REQUIREMENTS.—In providing for the 

14 discharge of the requirements of this section by the 

15 Department of Defense, the Secretary of Defense 

16 may use and modify for that purpose requirements 

17 and procedures established by the Secretary for pur18 poses of the discharge of the requirements of section 

19 841 of the National Defense Authorization Act for 

20 Fiscal Year 2012. 

Æ 


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