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[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[S. 675 Reported in Senate (RS)]

                                                       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.

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

<DELETED>SECTION 1. SHORT TITLE.</DELETED>

<DELETED>    This Act may be cited as the ``Never Contract With the 
Enemy Act''.</DELETED>

<DELETED>SEC. 2. PROHIBITION ON CONTRACTING WITH THE ENEMY.</DELETED>

<DELETED>    (a) Statement of Policy.--It shall be the policy of the 
United States that executive agencies shall not contract with the enemy 
or with a person or entity that has been identified as providing funds 
received under a contract, grant, or cooperative agreement directly or 
indirectly to an enemy of the United States or otherwise supporting 
those who are actively opposing the United States or coalition forces 
in a contingency operation.</DELETED>
<DELETED>    (b) Authority To Terminate or Void Contracts, Grants, and 
Cooperative Agreements and To Restrict Future Award.--</DELETED>
        <DELETED>    (1) In general.--Not later than 30 days after the 
        date of the enactment of this Act, the Federal Acquisition 
        Regulation shall be revised to provide that, upon notice from a 
        Senior Procurement Executive or the commander of a geographic 
        combatant command under subsection (e)(3), the head of 
        contracting activity of an executive agency may do the 
        following:</DELETED>
                <DELETED>    (A) If the notice is that a person or 
                entity has been identified as providing funds received 
                under a contract, grant, or cooperative agreement of 
                the executive agency directly or indirectly to an enemy 
                of the United States or a person or entity who is 
                actively supporting an enemy of the United States or 
                otherwise supporting those who are actively opposing 
                United States or coalition forces in a contingency 
                operation--</DELETED>
                        <DELETED>    (i) either--</DELETED>
                                <DELETED>    (I) terminate for default 
                                the contract, grant, or cooperative 
                                agreement; or</DELETED>
                                <DELETED>    (II) void the contract, 
                                grant, or cooperative agreement in 
                                whole or in part; and</DELETED>
                        <DELETED>    (ii) restrict the future award to 
                        the person or entity so identified of 
                        contracts, grants, or cooperative agreements of 
                        the executive agency.</DELETED>
                <DELETED>    (B) If the notice is that the person or 
                entity has failed to exercise due diligence to ensure 
                that none of the funds received under a contract, 
                grant, or cooperative agreement of the executive entity 
                are provided directly or indirectly to an enemy of the 
                United States or a person or entity who is actively 
                supporting an enemy of the United States or otherwise 
                supporting those who are actively opposing United 
                States or coalition forces in a contingency operation, 
                terminate for default the contract, grant, or 
                cooperative agreement.</DELETED>
        <DELETED>    (2) Treatment as void.--For purposes of this 
        section:</DELETED>
                <DELETED>    (A) A contract, grant, or cooperative 
                agreement that is void is unenforceable as contrary to 
                public policy.</DELETED>
                <DELETED>    (B) A contract, grant, or cooperative 
                agreement that is void in part is unenforceable as 
                contrary to public policy with regard to a segregable 
                task or effort under the contract, grant, or 
                cooperative agreement.</DELETED>
<DELETED>    (c) Contract Clause.--</DELETED>
        <DELETED>    (1) In general.--Not later than 30 days after the 
        date of the enactment of this Act, the Federal Acquisition 
        Regulation shall be revised to require that--</DELETED>
                <DELETED>    (A) the clause described in paragraph (2) 
                shall be included in each covered contract, grant, and 
                cooperative agreement of an executive agency that is 
                awarded on or after the date of the enactment of this 
                Act; and</DELETED>
                <DELETED>    (B) to the maximum extent practicable, 
                each covered contract, grant, and cooperative agreement 
                of an executive agency that is awarded before the date 
                of the enactment of this Act shall be modified to 
                include the clause described in paragraph (2), other 
                than the matter provided for in subparagraph (A) of 
                that paragraph.</DELETED>
        <DELETED>    (2) Clause described.--The clause described in 
        this paragraph is a clause that--</DELETED>
                <DELETED>    (A) requires the contractor, or the 
                recipient of the grant or cooperative agreement, to 
                certify in connection with entry into the contract, 
                grant, or cooperative agreement that the contractor or 
                recipient, as the case may be, has never knowingly 
                provided funds directly or indirectly to an enemy of 
                the United States or a person or entity who is actively 
                supporting an enemy of the United States or otherwise 
                knowingly supported those who are actively opposing 
                United States or coalition forces in a contingency 
                operation;</DELETED>
                <DELETED>    (B) requires the contractor, or the 
                recipient of the grant or cooperative agreement, to 
                exercise due diligence to ensure that none of the funds 
                received under the contract, grant, or cooperative 
                agreement are provided directly or indirectly to an 
                enemy of the United States or a person or entity who is 
                actively supporting an enemy of the United States or 
                otherwise supporting those who are actively opposing 
                United States or coalition forces in a contingency 
                operation; and</DELETED>
                <DELETED>    (C) notifies the contractor, or the 
                recipient of the grant or cooperative agreement, of the 
                authority of the head of the contracting activity to 
                terminate or void the contract, grant, or cooperative 
                agreement, in whole or in part, as provided in 
                subsection (b).</DELETED>
        <DELETED>    (3) Covered contract, grant, or cooperative 
        agreement.--In this subsection, the term ``covered contract, 
        grant, or cooperative agreement'' means a contract, grant, or 
        cooperative agreement with an estimated value in excess of 
        $20,000.</DELETED>
<DELETED>    (d) Requirements Following Contract Actions.--Not later 
than 30 days after the date of the enactment of this Act, the Federal 
Acquisition Regulation shall be revised as follows:</DELETED>
        <DELETED>    (1) To require that any head of contracting 
        activity taking an action under subsection (b) to terminate, 
        void, or restrict a contract, grant, or cooperative agreement 
        notify in writing the contractor or recipient of the grant or 
        cooperative agreement, as applicable, of the action.</DELETED>
        <DELETED>    (2) To permit, in such manner as the Federal 
        Acquisition Regulation as so revised shall provide, the 
        contractor or recipient of a grant or cooperative agreement 
        subject to an action taken under subsection (b) to terminate or 
        void the contract, grant, or cooperative agreement, as the case 
        may be, an opportunity to contest the action within 30 days of 
        receipt of notice of the action.</DELETED>
<DELETED>    (e) Identification of Supporters of the Enemy.--</DELETED>
        <DELETED>    (1) Identification.--Not later than 30 days after 
        the date of the enactment of this Act, the Secretary of Defense 
        and each Senior Procurement Executive shall carry out a program 
        to use available intelligence (including information made 
        available pursuant to subsection (g)(1)) to--</DELETED>
                <DELETED>    (A) either--</DELETED>
                        <DELETED>    (i) in the case of the geographic 
                        combatant commands, review persons and entities 
                        who receive United States funds through 
                        contracts, grants, and cooperative agreements 
                        performed for such commands in their areas of 
                        responsibility; or</DELETED>
                        <DELETED>    (ii) in the case of the Senior 
                        Procurement Executives, review persons and 
                        entities who receive United States funds 
                        through contracts, grants, and cooperative 
                        agreements performed for their agencies; 
                        and</DELETED>
                <DELETED>    (B) identify any such persons and entities 
                who are providing funds received under a contract, 
                grant, or cooperative agreement of an executive agency 
                directly or indirectly to an enemy of the United States 
                or a person or entity who is actively supporting an 
                enemy of the United States or otherwise supporting 
                those who are actively opposing United States or 
                coalition forces in a contingency operation.</DELETED>
        <DELETED>    (2) Discharge by dod through commanders of 
        combatant commands.--The Secretary of Defense shall carry out 
        the program required by paragraph (1) through the commanders of 
        the geographic combatant commands.</DELETED>
        <DELETED>    (3) Notification of contracting activities.--If a 
        Senior Procurement Executive or the commander of a geographic 
        combatant command, acting pursuant to a program required by 
        paragraph (1), identifies a person or entity as actively 
        supporting an enemy of the United States or otherwise 
        supporting those who are actively opposing United States or 
        coalition forces in a contingency operation, the Senior 
        Procurement Executive or commander, as the case may be, shall 
        notify the heads of contracting activities of the executive 
        agencies in writing of such identification. Any written 
        notification pursuant to this paragraph shall be made in 
        accordance with procedures established to implement the 
        revisions to the Federal Acquisition Regulation required by 
        this section.</DELETED>
        <DELETED>    (4) Annual review.--As part of the programs 
        required by paragraph (1), the Senior Procurement Executives 
        and the commanders of the geographic combatant commands shall, 
        on an annual basis, review the lists of persons and entities 
        previously covered by a notice under paragraph (3) as having 
        been identified pursuant to paragraph (1)(B) in order to 
        determine whether or not such persons and entities continue to 
        warrant identification pursuant to paragraph (1)(B). If a 
        Senior Procurement Executive or commander determines pursuant 
        to such a review that a person or entity no longer warrants 
        identification pursuant to paragraph (1)(B), the Senior 
        Procurement Executive or commander, as the case may be, shall 
        notify the heads of contracting activities of the executive 
        agencies in writing of such determination.</DELETED>
        <DELETED>    (5) Protection of classified information.--
        Classified information relied upon to make an identification in 
        accordance with this subsection may not be disclosed to a 
        contractor or a recipient of a grant or cooperative agreement 
        with respect to which an action is taken pursuant to the 
        authority provided in subsection (b), or to their 
        representatives, in the absence of a protective order issued by 
        a court of competent jurisdiction established under Article I 
        or Article III of the Constitution of the United States that 
        specifically addresses the conditions upon which such 
        classified information may be so disclosed.</DELETED>
<DELETED>    (f) Delegation of Certain Responsibilities.--</DELETED>
        <DELETED>    (1) Responsibility to identify and provide 
        notice.--A Senior Procurement Executive may delegate the 
        responsibilities in paragraphs (1), (3), and (4) of subsection 
        (e) to the designated deputy of such Executive. The commander 
        of a geographic combatant command may delegate the 
        responsibilities in such paragraphs to the deputy commander of 
        that combatant command. Any delegation of responsibilities 
        under this paragraph shall be made in writing.</DELETED>
        <DELETED>    (2) Nondelegation of responsibility for contract 
        actions.--The authority provided by subsection (b) to 
        terminate, void, or restrict contracts, grants, and cooperative 
        agreements may not be delegated below the level of head of 
        contracting activity.</DELETED>
<DELETED>    (g) Additional Responsibilities of Executive Agencies.--
</DELETED>
        <DELETED>    (1) Dissemination of information on supporters of 
        the enemy.--The Secretary of Defense and the Administrator for 
        Federal Procurement Policy shall jointly carry out a program 
        through which the contracting activities of the executive 
        agencies may provide information to Senior Procurement 
        Executives and the commanders of the geographic combatant 
        commands relating to persons or entities who may be providing 
        funds received under contracts, grants, or cooperative 
        agreements of the executive agencies directly or indirectly to 
        an enemy of the United States or a person or entity who is 
        actively supporting an enemy of the United States or otherwise 
        supporting those who are actively opposing United States or 
        coalition forces in a contingency operation. The program shall 
        be designed to facilitate and encourage the sharing of 
        information between executive agencies and the geographic 
        combatant commands.</DELETED>
        <DELETED>    (2) Inclusion of information on contract actions 
        in fapiis.--Upon the termination, voiding, or restriction of a 
        contract, grant, or cooperative agreement of an executive 
        agency under subsection (b), the head of contracting activity 
        of the executive agency shall provide for the inclusion in the 
        Federal Awardee Performance and Integrity Information System 
        (FAPIIS), or other formal system of records on contractors or 
        entities, of appropriate information on the termination, 
        voiding, or restriction, as the case may be, of the contract, 
        grant, or cooperative agreement.</DELETED>
        <DELETED>    (3) Reports.--The head of contracting activity 
        that receives a notice pursuant to subsection (e)(3) shall 
        submit to the Senior Procurement Executives and the commanders 
        of the geographic combatant commands a report on the action, if 
        any, taken by the head of contracting activity pursuant to 
        subsection (b), including a determination not to terminate, 
        void, or restrict the contract, grant, or cooperative agreement 
        as otherwise authorized by subsection (b).</DELETED>
<DELETED>    (h) Reports.--</DELETED>
        <DELETED>    (1) In general.--Not later than March 1 each year, 
        the Secretary of Defense shall, in consultation with the heads 
        of other executive agencies, submit to the appropriate 
        committees of Congress a report on the use of the authorities 
        in this section in the preceding calendar year, including the 
        following:</DELETED>
                <DELETED>    (A) For each instance in which an 
                executive agency exercised the authority to terminate, 
                void, or restrict a contract, grant, and cooperative 
                agreement pursuant to subsection (b), the 
                following:</DELETED>
                        <DELETED>    (i) The executive agency taking 
                        such action.</DELETED>
                        <DELETED>    (ii) An explanation of the basis 
                        for the action taken.</DELETED>
                        <DELETED>    (iii) The value of the contract, 
                        grant, or cooperative agreement voided or 
                        terminated.</DELETED>
                        <DELETED>    (iv) The value of all contracts, 
                        grants, or cooperative agreements of the 
                        executive agency in force with the person or 
                        entity concerned at the time the contract, 
                        grant, or cooperative agreement was terminated 
                        or voided.</DELETED>
                <DELETED>    (B) For each instance in which an 
                executive agency did not exercise the authority to 
                terminate, void, or restrict a contract, grant, and 
                cooperative agreement pursuant to subsection (b) as 
                requested pursuant to subsection (e)(3), the 
                following:</DELETED>
                        <DELETED>    (i) The executive agency 
                        concerned.</DELETED>
                        <DELETED>    (ii) An explanation why the action 
                        was not taken.</DELETED>
        <DELETED>    (2) Form.--Any report under this subsection may be 
        submitted in classified form.</DELETED>
<DELETED>    (i) Other Definitions.--In this section:</DELETED>
        <DELETED>    (1) The term ``appropriate committees of 
        Congress'' means--</DELETED>
                <DELETED>    (A) the Committee on Armed Services, the 
                Committee on Homeland Security and Governmental 
                Affairs, and the Committee on Appropriations of the 
                Senate; and</DELETED>
                <DELETED>    (B) the Committee on Armed Services, the 
                Committee on Oversight and Government Reform, and the 
                Committee on Appropriations of the House of 
                Representatives.</DELETED>
        <DELETED>    (2) The term ``combatant command'' means a command 
        established pursuant to chapter 6 of title 10, United States 
        Code.</DELETED>
        <DELETED>    (3) The term ``contingency operation'' has the 
        meaning given that term in section 101(a)(13) of title 10, 
        United States Code.</DELETED>
        <DELETED>    (4) The term ``enemy of the United States'' means 
        any of the following:</DELETED>
                <DELETED>    (A) Any person or organization determined 
                by the Secretary of Defense or the Secretary of State 
                to be hostile to United States forces or interests or 
                providing support to any person or organization hostile 
                to United States forces or interests during the time of 
                a declared war, peacekeeping operation, or other 
                military or contingency operation.</DELETED>
                <DELETED>    (B) Any organization designated as a 
                terrorist organization under section 219(a) of the 
                Immigration and Nationality Act (8 U.S.C. 
                1189(a)).</DELETED>
        <DELETED>    (5) The term ``executive agency'' has the meaning 
        given that term in section 133 of title 41, United States 
        Code.</DELETED>
        <DELETED>    (6) The term ``head of contracting activity'' has 
        the meaning given that term in subpart 601 of part 1 of the 
        Federal Acquisition Regulation.</DELETED>
        <DELETED>    (7) The term ``Senior Procurement Executive'' has 
        the meaning given that term in section 1702 of title 41, United 
        States Code.</DELETED>
<DELETED>    (j) Coordination With Current Authorities Applicable to 
CENTCOM.--</DELETED>
        <DELETED>    (1) Repeal of superseded authority.--Effective 30 
        days after the date of the enactment of this Act, section 841 
        of the National Defense Authorization Act for Fiscal Year 2012 
        (Public Law 112-81; 125 Stat. 1510; 10 U.S.C. 2302 note) is 
        repealed.</DELETED>
        <DELETED>    (2) Use of superseded authorities in discharge of 
        requirements.--In providing for the discharge of the 
        requirements of this section by the Department of Defense, the 
        Secretary of Defense may use and modify for that purpose 
        requirements and procedures established by the Secretary for 
        purposes of the discharge of the requirements of section 841 of 
        the National Defense Authorization Act for Fiscal Year 
        2012.</DELETED>

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Never Contract With the Enemy Act''.

SEC. 2. PROHIBITION ON PROVIDING FUNDS TO THE ENEMY.

    (a) Identification of Persons and Entities.--The Secretary of 
Defense shall, in conjunction with the Director of National 
Intelligence and in consultation with the Secretary of State, establish 
in each covered combatant command a program to identify persons and 
entities within the area of responsibility of such command that--
            (1) provide funds, including goods and services, received 
        under a contract, grant, or cooperative agreement of an 
        executive agency directly or indirectly to a covered person or 
        entity; or
            (2) fail to exercise due diligence to ensure that none of 
        the funds, including goods and services, received under a 
        contract, grant, or cooperative agreement of an executive 
        agency are provided directly or indirectly to a covered person 
        or entity.
    (b) Notice of Identified Persons and Entities.--
            (1) Notice.--Upon the identification of a person or entity 
        as being described by subsection (a), the head of an executive 
        agency (or the designee of such head) or the commander of a 
        covered combatant command (or the specified deputies of the 
        commander) shall be notified, in writing, of such 
        identification of the person or entity.
            (2) Responsive actions.--Upon receipt of a notice under 
        paragraph (1), the head of an executive agency (or the designee 
        of such head) or the commander of a covered combatant command 
        (or the specified deputies of the commander) may notify the 
        heads of contracting activities, or other appropriate officials 
        of the agency or command, in writing of such identification.
            (3) Making of notifications.--Any written notification 
        pursuant to this subsection shall be made in accordance with 
        procedures established to implement the revisions of 
        regulations required by this section.
    (c) Authority to Terminate or Void Contracts, Grants, and 
Cooperative Agreements and to Restrict Future Award.--Not later than 
270 days after the date of the enactment of this Act, the Federal 
Acquisition Regulation, the Defense Federal Acquisition Regulation 
Supplement, and the Uniform Administrative Requirements, Cost 
Principles, and Account Requirements for Federal Awards shall be 
revised to provide that, upon notice from the head of an executive 
agency (or the designee of such head) or the commander of a covered 
combatant command (or the specified deputies of the commander) pursuant 
to subsection (b), the head of contracting activity of an executive 
agency, or other appropriate official, may do the following:
            (1) Restrict the award of contracts, grants, or cooperative 
        agreements of the executive agency concerned upon a written 
        determination by the head of contracting activity or other 
        appropriate official that the contract, grant, or cooperative 
        agreement would provide funds received under such contract, 
        grant, or cooperative agreement directly or indirectly to a 
        covered person or entity.
            (2) Terminate for default any contract, grant, or 
        cooperative agreement of the executive agency concerned upon a 
        written determination by the head of contracting activity or 
        other appropriate official that the contractor, or the 
        recipient of the grant or cooperative agreement, has failed to 
        exercise due diligence to ensure that none of the funds 
        received under the contract, grant, or cooperative agreement 
        are provided directly or indirectly to a covered person or 
        entity.
            (3) Void in whole or in part any contract, grant, or 
        cooperative agreement of the executive agency concerned upon a 
        written determination by the head of contracting activity or 
        other appropriate official that the contract, grant, or 
        cooperative agreement provides funds directly or indirectly to 
        a covered person or entity.
    (d) Clause.--
            (1) In general.--Not later than 270 days after the date of 
        the enactment of this Act, the Federal Acquisition Regulation, 
        the Defense Federal Acquisition Regulation Supplement, and the 
        Uniform Administrative Requirements, Cost Principles, and 
        Account Requirements for Federal Awards shall be revised to 
        require that--
                    (A) the clause described in paragraph (2) shall be 
                included in each covered contract, grant, and 
                cooperative agreement of an executive agency that is 
                awarded on or after the date that is 270 days after the 
                date of the enactment of this Act; and
                    (B) to the maximum extent practicable, each covered 
                contract, grant, and cooperative agreement of an 
                executive agency that is awarded before the date of the 
                enactment of this Act shall be modified to include the 
                clause described in paragraph (2).
            (2) Clause described.--The clause described in this 
        paragraph is a clause that--
                    (A) requires the contractor, or the recipient of 
                the grant or cooperative agreement, to exercise due 
                diligence to ensure that none of the funds, including 
                goods and services, received under the contract, grant, 
                or cooperative agreement are provided directly or 
                indirectly to a covered person or entity; and
                    (B) notifies the contractor, or the recipient of 
                the grant or cooperative agreement, of the authority of 
                the head of the contracting activity, or other 
                appropriate official, to terminate or void the 
                contract, grant, or cooperative agreement, in whole or 
                in part, as provided in subsection (c).
            (3) Treatment as void.--For purposes of this section:
                    (A) A contract, grant, or cooperative agreement 
                that is void is unenforceable as contrary to public 
                policy.
                    (B) A contract, grant, or cooperative agreement 
                that is void in part is unenforceable as contrary to 
                public policy with regard to a segregable task or 
                effort under the contract, grant, or cooperative 
                agreement.
            (4) Public comment.--The President shall ensure that the 
        process for amending regulations required by paragraph (1) 
        shall include an opportunity for public comment, including an 
        opportunity for comment on standards of due diligence required 
        by this Act.
    (e) Requirements Following Contract Actions.--Not later than 270 
days after the date of the enactment of this Act, the Federal 
Acquisition Regulation, the Defense Federal Acquisition Regulation 
Supplement, and the Uniform Administrative Requirements, Cost 
Principles, and Account Requirements for Federal Awards shall be 
revised as follows:
            (1) To require that any head of contracting activity, or 
        other appropriate official, taking an action under subsection 
        (c) to terminate, void, or restrict a contract, grant, or 
        cooperative agreement notify in writing the contractor or 
        recipient of the grant or cooperative agreement, as applicable, 
        of the action.
            (2) To permit the contractor or recipient of a grant or 
        cooperative agreement subject to an action taken under 
        subsection (c) to terminate or void the contract, grant, or 
        cooperative agreement, as the case may be, an opportunity to 
        challenge the action by requesting an administrative review of 
        the action under the procedures of the executive agency 
        concerned not later than 30 days after receipt of notice of the 
        action.
    (f) Annual Review; Protection of Classified Information.--
            (1) Annual review.--The Secretary of Defense, in 
        conjunction with the Director of National Intelligence and in 
        consultation with the Secretary of State shall, on an annual 
        basis, review the lists of persons and entities previously 
        covered by a notice under subsection (b) as having been 
        identified as described by subsection (a) in order to determine 
        whether or not such persons and entities continue to warrant 
        identification as described by subsection (a). If a 
        determination is made pursuant to such a review that a person 
        or entity no longer warrants identification as described by 
        subsection (a), the Secretary of Defense shall notify the head 
        of an executive agency (or designee) or commander (or deputy), 
        as the case may be, in writing of such determination.
            (2) Protection of classified information.--Classified 
        information relied upon to make an identification in accordance 
        with subsection (a) may not be disclosed to a contractor or a 
        recipient of a grant or cooperative agreement with respect to 
        which an action is taken pursuant to the authority provided in 
        subsection (c), or to their representatives, in the absence of 
        a protective order issued by a court of competent jurisdiction 
        established under Article I or Article III of the Constitution 
        of the United States that specifically addresses the conditions 
        upon which such classified information may be so disclosed.
    (g) Delegation of Certain Responsibilities.--
            (1) Combatant command responsibilities.--The commander of a 
        covered combatant command may delegate the responsibilities in 
        this section to any deputies of the commander specified by the 
        commander for purposes of this section. Any delegation of 
        responsibilities under this paragraph shall be made in writing.
            (2) Nondelegation of responsibility for certain actions.--
        The authority provided by subsection (c) to terminate, void, or 
        restrict contracts, grants, and cooperative agreements, in 
        whole or in part, may not be delegated below the level of head 
        of contracting activity, or equivalent official for purposes of 
        grants or cooperative agreements.
    (h) Additional Responsibilities of Executive Agencies.--
            (1) Sharing of information on supporters of the enemy.--The 
        Secretary of Defense shall, in consultation with the Director 
        of the Office of Management and Budget, carry out a program 
        through which agency components may provide information to 
        heads of executive agencies (or the designees of such heads) 
        and the commanders of the covered combatant commands (or the 
        specified deputies of the commanders) relating to persons or 
        entities who may be providing funds, including goods and 
        services, received under contracts, grants, or cooperative 
        agreements of the executive agencies directly or indirectly to 
        a covered person or entity. The program shall be designed to 
        facilitate and encourage the sharing of risk and threat 
        information between executive agencies and the covered 
        combatant commands.
            (2) Inclusion of information on contract actions in fapiis 
        and other systems.--Upon the termination, voiding, or 
        restriction of a contract, grant, or cooperative agreement of 
        an executive agency under subsection (c), the head of 
        contracting activity of the executive agency shall provide for 
        the inclusion in the Federal Awardee Performance and Integrity 
        Information System (FAPIIS), or other formal system of records 
        on contractors or entities, of appropriate information on the 
        termination, voiding, or restriction, as the case may be, of 
        the contract, grant, or cooperative agreement.
            (3) Reports.--The head of contracting activity that 
        receives a notice pursuant to subsection (b) shall submit to 
        the head of the executive agency (or designee) concerned or the 
        appropriate covered combatant command, as the case may be, a 
        report on the action, if any, taken by the head of contracting 
        activity pursuant to subsection (c), including a determination 
        not to terminate, void, or restrict the contract, grant, or 
        cooperative agreement as otherwise authorized by subsection 
        (c).
    (i) Reports.--
            (1) In general.--Not later than March 1 of 2016, 2017, and 
        2018, the Director of the Office of Management and Budget shall 
        submit to the appropriate committees of Congress a report on 
        the use of the authorities in this section in the preceding 
        calendar year, including the following:
                    (A) For each instance in which an executive agency 
                exercised the authority to terminate, void, or restrict 
                a contract, grant, and cooperative agreement pursuant 
                to subsection (c), based on a notification under 
                subsection (b), the following:
                            (i) The executive agency taking such 
                        action.
                            (ii) An explanation of the basis for the 
                        action taken.
                            (iii) The value of the contract, grant, or 
                        cooperative agreement voided or terminated.
                            (iv) The value of all contracts, grants, or 
                        cooperative agreements of the executive agency 
                        in force with the person or entity concerned at 
                        the time the contract, grant, or cooperative 
                        agreement was terminated or voided.
                    (B) For each instance in which an executive agency 
                did not exercise the authority to terminate, void, or 
                restrict a contract, grant, and cooperative agreement 
                pursuant to subsection (c), based on a notification 
                under subsection (b), the following:
                            (i) The executive agency concerned.
                            (ii) An explanation why the action was not 
                        taken.
            (2) Form.--Any report under this subsection may, at the 
        election of the Director--
                    (A) be submitted in unclassified form, but with a 
                classified annex; or
                    (B) be submitted in classified form.
    (j) National Security Exception.--Nothing in this section shall 
apply to the authorized intelligence or law enforcement activities of 
the United States Government.
    (k) Construction With Other Authorities.--Except as provided in 
subsection (l), the authorities in this section shall be in addition 
to, and not to the exclusion of, any other authorities available to 
executive agencies to implement policies and purposes similar to those 
set forth in this section.
    (l) Coordination With Current Authorities.--
            (1) Repeal of superseded authority related to centcom.--
        Effective 270 days after the date of the enactment of this Act, 
        section 841 of the National Defense Authorization Act for 
        Fiscal Year 2012 (Public Law 112-81; 125 Stat. 1513; 10 U.S.C. 
        2313 note) is repealed.
            (2) Repeal of superseded authority related to department of 
        defense.--Effective 270 days after the date of the enactment of 
        this Act, section 831 of the National Defense Authorization Act 
        for Fiscal Year 2014 (Public Law 113-66; 127 Stat. 810; 10 
        U.S.C. 2302 note) is repealed.
            (3) Use of superseded authorities in discharge of 
        requirements.--In providing for the discharge of the 
        requirements of this section by the Department of Defense, the 
        Secretary of Defense may use and modify for that purpose the 
        regulations and procedures established for purposes of the 
        discharge of the requirements of section 841 of the National 
        Defense Authorization Act for Fiscal Year 2012 and section 831 
        of the National Defense Authorization Act for Fiscal Year 2014.
    (m) Sunset.--The provisions of this section shall cease to be 
effective on December 31, 2019.

SEC. 3. ADDITIONAL ACCESS TO RECORDS.

    (a) Contracts, Grants, and Cooperative Agreements.--
            (1) In general.--Not later than 270 days after the date of 
        the enactment of this Act, applicable regulations shall be 
        revised to provide that the clause described in paragraph (2) 
        may, as appropriate, be included in each covered contract, 
        grant, and cooperative agreement of an executive agency that is 
        awarded on or after the date of the enactment of this Act.
            (2) Clause.--The clause described in this paragraph is a 
        clause authorizing the head of the executive agency concerned, 
        upon a written determination pursuant to paragraph (3), to 
        examine any records of the contractor, the recipient of a grant 
        or cooperative agreement, or any subcontractor or subgrantee 
        under such contract, grant, or cooperative agreement to the 
        extent necessary to ensure that funds, including goods and 
        services, available under the contract, grant, or cooperative 
        agreement are not provided directly or indirectly to a covered 
        person or entity.
            (3) Written determination.--The authority to examine 
        records pursuant to the contract clause described in paragraph 
        (2) may be exercised only upon a written determination by the 
        contracting officer or comparable official responsible for a 
        grant or cooperative agreement, upon a finding by the commander 
        of a covered combatant command (or the specified deputies of 
        the commander) or the head of an executive agency (or the 
        designee of such head) that there is reason to believe that 
        funds, including goods and services, available under the 
        contract, grant, or cooperative agreement concerned may have 
        been provided directly or indirectly to a covered person or 
        entity.
            (4) Flowdown.--A clause described in paragraph (2) may also 
        be included in any subcontract or subgrant under a covered 
        contract, grant, or cooperative agreement if the subcontract or 
        subgrant has an estimated value in excess of $50,000.
    (b) Reports.--
            (1) In general.--Not later than March 1 of 2016, 2017, and 
        2018, the Director of the Office of Management and Budget shall 
        submit to the appropriate committees of Congress a report on 
        the use of the authority provided by this section in the 
        preceding calendar year.
            (2) Elements.--Each report under this subsection shall 
        identify, for the calendar year covered by such report, each 
        instance in which an executive agency exercised the authority 
        provided under this section to examine records, explain the 
        basis for the action taken, and summarize the results of any 
        examination of records so undertaken.
            (3) Form.--Any report under this subsection may be 
        submitted in classified form.
    (c) Coordination With Current Authorities Applicable to CENTCOM.--
            (1) Repeal of superseded authority.--Effective 270 days 
        after the date of the enactment of this Act, section 842 of the 
        National Defense Authorization Act for Fiscal Year 2012 (Public 
        Law 112-81; 125 Stat. 1510; 10 U.S.C. 2302 note) is repealed.
            (2) Use of superseded authorities in discharge of 
        requirements.--In providing for the discharge of the 
        requirements of this section by the Department of Defense, the 
        Secretary of Defense may use and modify for that purpose 
        requirements and procedures established by the Secretary for 
        purposes of the discharge of the requirements of section 842 of 
        the National Defense Authorization Act for Fiscal Year 2012.

SEC. 4. DEFINITIONS.

    In this Act:
            (1) Appropriate committees of congress.--The term 
        ``appropriate committees of Congress'' means--
                    (A) the Committee on Armed Services, the Committee 
                on Homeland Security and Governmental Affairs, the 
                Committee on Foreign Relations, and the Committee on 
                Appropriations of the Senate; and
                    (B) the Committee on Armed Services, the Committee 
                on Oversight and Government Reform, the Committee on 
                Foreign Affairs, and the Committee on Appropriations of 
                the House of Representatives.
            (2) Contingency operation.--The term ``contingency 
        operation'' has the meaning given that term in section 
        101(a)(13) of title 10, United States Code.
            (3) Contract.--The term ``contract'' includes a contract 
        for commercial items but is not limited to a contract for 
        commercial items.
            (4) Covered combatant command.--The term ``covered 
        combatant command'' means the following:
                    (A) The United States Africa Command.
                    (B) The United States Central Command.
                    (C) The United States European Command.
                    (D) The United States Pacific Command.
                    (E) The United States Southern Command.
            (5) Covered contract, grant, or cooperative agreement 
        defined.--The term ``covered contract, grant, or cooperative 
        agreement'' means a contract, grant, or cooperative agreement 
        with an estimated value in excess of $50,000 that is performed 
        outside the United States, including its possessions and 
        territories.
            (6) Covered person or entity.--The term ``covered person or 
        entity'' means a person or entity that is actively opposing 
        United States or coalition forces involved in a contingency 
        operation in which members of the Armed Forces are actively 
        engaged in hostilities.
            (7) Executive agency.--The term ``executive agency'' has 
        the meaning given that term in section 133 of title 41, United 
        States Code.
            (8) Head of contracting activity.--The term ``head of 
        contracting activity'' has the meaning given that term in 
        subpart 601 of part 1 of the Federal Acquisition Regulation.
                                                       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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