II 

112TH CONGRESS 

1ST SESSION S. 341 

To require the rescission or termination of Federal contracts and subcontracts 

with enemies of the United States. 

IN THE SENATE OF THE UNITED STATES 

FEBRUARY 14, 2011 

Mr. BROWN of Massachusetts (for himself and Ms. AYOTTE) introduced the 

following bill; which was read twice and referred to the Committee on 

Homeland Security and Governmental Affairs 

A BILL 

To require the rescission or termination of Federal contracts 

and subcontracts with enemies of the United States. 

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 ‘‘No Contracting with 

5 the Enemy Act of 2011’’. 

6 SEC. 2. DEFINITIONS. 

7 In this Act: 

8 (1) ELEMENT OF THE INTELLIGENCE COMMU9 NITY.—The term ‘‘element of the intelligence com10 munity’’ means an element of the intelligence commstockstill on DSKH9S0YB1PROD with BILLS

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1 munity specified or designated in section 3(4) of the 

2 National Security Act of 1947 (50 U.S.C. 401a(4)). 

3 (2) ENEMY OF THE UNITED STATES.—The 

4 term ‘‘enemy of the United States’’ means any per5 son or organization determined by the Secretary of 

6 Defense or the Secretary of State to be hostile to 

7 United States forces or interests or providing sup8 port to any person or organization hostile to United 

9 States forces or interests during the time of a de10 clared war, peacekeeping operation, or other military 

11 or contingency operation. 

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

13 agency’’ has the meaning given the term in section 

14 133 of title 41, United States Code. 

15 (4) FEDERAL ACQUISITION REGULATION.—The 

16 term ‘‘Federal Acquisition Regulation’’ means the 

17 regulation maintained under section 1303(a)(1) of 

18 title 41, United States Code. 

19 (5) FEDERAL CONTRACT.—The term ‘‘Federal 

20 contract’’ means any contract, including any order 

21 under a multiple award or indefinite delivery or in22 definite quality contract, entered into by an execu23 tive agency for the procurement of property or serv24 ices. 

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1 SEC. 3. PROHIBITION ON CONTRACTS WITH ENEMIES. 

2 (a) IN GENERAL.—Not later than 60 days after the 

3 date of the enactment of this Act, the Federal Acquisition 

4 Regulatory Council shall amend the Federal Acquisition 

5 Regulation— 

6 (1) to prohibit the awarding of Federal con7 tracts to enemies of the United States; and 

8 (2) to provide that any Federal contract with 

9 an enemy of the United States shall be null and void 

10 and may be immediately terminated or rescinded by 

11 the head of the executive agency concerned at no 

12 cost to the United States Government, including any 

13 compensation otherwise due under termination for 

14 convenience, termination for default, or other con15 tract provisions or provisions of law. 

16 (b) PROHIBITION ON SUBCONTRACTS.—The regula17 tions prescribed under subsection (a) shall prohibit the 

18 awarding of subcontracts under a Federal contract to en19 emies of the United States, and shall include the following 

20 requirements: 

21 (1) Federal contracts shall include a contract 

22 clause prohibiting the use of a subcontractor at any 

23 tier under the contract that is an enemy of the 

24 United States. 

25 (2) If the head of an executive agency deter26 mines that a prime contractor has subcontracted at 

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1 any tier under a Federal contract with a contractor 

2 that is an enemy of the United States, the con3 tracting official shall— 

4 (A) direct the prime contractor to termi5 nate the subcontract immediately with no fur6 ther payment or compensation to the subcon7 tractor; 

8 (B) notify the prime contractor that failure 

9 to terminate the subcontract shall be grounds 

10 for default on the prime contract; and 

11 (C) take all necessary actions to ensure 

12 that no further payments, including previously 

13 approved payments and compensation otherwise 

14 due under termination for convenience, termi15 nation for default, or other contract provisions 

16 or provisions of law, are made to the subcon17 tractor. 

18 (c) INTELLIGENCE COMMUNITY AND NATIONAL SE19 CURITY EXCEPTION.—The prohibitions under subsections 

20 (a) and (b) shall not apply to contracts entered into by 

21 elements of the intelligence community in support of intel22 ligence activities or any other contract where national se23 curity may be compromised. 

24 (d) MONITORING OF TERMINATED CONTRACTS.— 

25 Not later than 90 days after the date of the enactment 

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1 of this Act, the Administrator for Federal Procurement 

2 Policy shall direct the Administrator of General Services 

3 to add a field to the Federal Awardee Performance and 

4 Integrity Information System (‘‘FAPIIS’’) to record con5 tracts voided or otherwise terminated based on a deter6 mination that the contract, or any subcontract under the 

7 contract, was with an enemy of the United States as de8 fined under section 2(1). 

9 (e) DISSEMINATION.—The Administrator for Federal 

10 Procurement Policy, in coordination with the Secretary of 

11 Defense and the Secretary of State, shall ensure that the 

12 regulations implementing this Act are disseminated to all 

13 personnel affected and that all contractors are made aware 

14 of this policy prior to contract awards. 

15 SEC. 4. DETERMINATION OF ENEMY STATUS. 

16 (a) REGULATIONS.— 

17 (1) IN GENERAL.—Not later than 60 days after 

18 the date of the enactment of this Act, the Secretary 

19 of Defense, in coordination with the Secretary of 

20 State, shall prescribe regulations establishing a proc21 ess for the heads of executive agencies to make a de22 termination that a party to a contract is an enemy 

23 of the United States as defined under section 2(1). 

24 (2) ELEMENTS.—The regulations prescribed 

25 under paragraph (1) shall establish— 

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1 (A) a process for verifying the information 

2 on which a determination under such paragraph 

3 is sufficiently reliable; 

4 (B) a process for protecting confidential 

5 sources; 

6 (C) a process requiring the heads of execu7 tive agencies to document the basis for deter8 minations under paragraph (1) and the infor9 mation relied upon in making such determina10 tions; and 

11 (D) a process for retaining such informa12 tion for possible review under section 5. 

13 SEC. 5. DUE PROCESS PROCEDURE. 

14 (a) IN GENERAL.—Any contractor whose contract is 

15 voided or otherwise terminated under the procedures pre16 scribed pursuant to section 3 may utilize the procedures 

17 established under chapter 71 of title 41, United States 

18 Code, except that the only basis for a claim under these 

19 procedures is that the contractor is not an enemy of the 

20 United States as defined under section 2(1). 

21 (b) PROTECTION OF NATIONAL SECURITY.—The reg22 ulations established under chapter 71 of title 41, United 

23 States Code, shall be amended to provide for the protec24 tion of national security as appropriate when a claim is 

25 submitted under subsection (a). 

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1 SEC. 6. APPLICABILITY. 

2 This Act and the amendments made pursuant to this 

3 Act shall apply with respect to contracts entered into on 

4 or after the date of the enactment of this Act. 

Æ 

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