II 

110TH CONGRESS 

2D SESSION S. 3139 

To provide for greater accountability and transparency in the Federal 

contracting process, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JUNE 16, 2008 

Mrs. CLINTON introduced the following bill; which was read twice and referred 

to the Committee on Homeland Security and Governmental Affairs 

A BILL 

To provide for greater accountability and transparency in 

the Federal contracting process, and for other purposes. 

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

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Oversight of the Performance and Effectiveness of Na6 tional Contracting Act of 2008’’. 

7 (b) TABLE OF CONTENTS.—The table of contents for 

8 this Act is as follows: 

Sec. 1. Short title; table of contents. 

Sec. 2. Definitions. 

TITLE I—ACCOUNTABILITY FOR CONTRACTORS 


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Sec. 101. Governmental policy. 

Sec. 102. Prohibition on awarding of Government contracts or grants to companies purposefully organized in an offshore secrecy jurisdiction 

to avoid Federal tax obligations. 

Sec. 103. Prohibition on contracting with companies without financial report 

certifications. 

Sec. 104. Requirement for Federal contractors to possess satisfactory record of 

integrity and business ethics. 

Sec. 105. Preventing conflicts of interest of contractor personnel. 

Sec. 106. Award fees. 

TITLE II—COMPETITION AND TRANSPARENCY 

Sec. 201. Database for contracting officers. 

Sec. 202. Enhancement of contracting information disclosed on 

USASpending.gov. 

TITLE III—BUILDING A BETTER FEDERAL GOVERNMENT 

WORKFORCE 

Sec. 301. Contractors and inherently governmental functions. 

TITLE IV—DISCLOSURE EXCEPTIONS 

Sec. 401. Exceptions to disclosure requirements. 

1 SEC. 2. DEFINITIONS. 

2 In this Act: 

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

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

5 4 of the Office of Federal Procurement Policy (41 

6 U.S.C. 403). 

7 (2) FUNCTIONS CLOSELY ASSOCIATED WITH

8 GOVERNMENTAL FUNCTIONS.—The term ‘‘functions 

9 closely associated with a governmental functions’’ 

10 means functions described in section 7.503(d) of the 

11 Federal Acquisition Regulation. 

12 (3) INHERENTLY GOVERNMENTAL FUNC13 TIONS.—The term ‘‘inherently governmental funcVerDate Aug 31 2005 22:03 Jun 18, 2008 Jkt 069200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S3139.IS S3139

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1 tions’’ has the meaning given the term in section 

2 2.101 of the Federal Acquisition Regulation. 

3 TITLE I—ACCOUNTABILITY FOR 

4 CONTRACTORS 

5 SEC. 101. GOVERNMENTAL POLICY. 

6 It is the policy of the United States Government that 

7 no Government contracts or grants should be awarded to 

8 companies purposefully organized in an offshore secrecy 

9 jurisdiction to avoid Federal tax obligations. 

10 SEC. 102. PROHIBITION ON AWARDING OF GOVERNMENT 

11 CONTRACTS OR GRANTS TO COMPANIES PUR12 POSEFULLY ORGANIZED IN AN OFFSHORE 

13 SECRECY JURISDICTION TO AVOID FEDERAL 

14 TAX OBLIGATIONS. 

15 (a) IN GENERAL.—The head of any Executive agency 

16 that issues an invitation for bids or a request for proposals 

17 for a contract or offers a grant may not award such con18 tract or grant to any person which is an offshore secrecy 

19 jurisdiction company. 

20 (b) REGULATIONS AND GUIDANCE.— 

21 (1) IN GENERAL.—Not later than 210 days 

22 after the date of the enactment of this section (in23 cluding a period of not more than 30 days for com24 ment), the Director of the Office of Management 

25 and Budget and the Secretary shall adopt and revise 


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1 such regulations or guidance as necessary to incor2 porate the requirements of this section, including 

3 procedures under which— 

4 (A) the Commissioner of Internal Revenue 

5 shall notify the head of each Executive agency 

6 of any determination that a person is an off7 shore secrecy jurisdiction company; and 

8 (B) any person that is no longer deter9 mined by the Commissioner of Internal Revenue 

10 to be an offshore secrecy jurisdiction company 

11 can petition for reinstatement as a person eligi12 ble for the awarding of any such contract or 

13 grant. 

14 (2) DETERMINATION OF OFFSHORE SECRECY

15 JURISDICTION COMPANY.—As part of the regulations 

16 or guidance under paragraph (1), the Secretary shall 

17 provide guidelines for the determination by the Com18 missioner of Internal Revenue on whether a person 

19 is purposefully organized in an offshore secrecy ju20 risdiction to avoid Federal tax obligations. Such 

21 guidelines shall provide that as part of such deter22 mination, the Commissioner of Internal Revenue 

23 shall review— 


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1 (A) whether such organization changes in 

2 a meaningful way (apart from Federal tax ef3 fects) the persons’s economic position; 

4 (B) whether such person has a substantial 

5 nontax purpose for organizing in an offshore se6 crecy jurisdiction and whether the organization 

7 is a reasonable means of accomplishing such 

8 purpose; 

9 (C) whether the present value of the rea10 sonably expected pre-tax profit attributable to 

11 the person’s organization in an offshore secrecy 

12 jurisdiction is substantial in relation to the 

13 present value of the expected net tax benefits of 

14 such organization; and 

15 (D) whether the reasonably expected pre16 tax profit attributable to the person’s organiza17 tion in an offshore secrecy jurisdiction exceeds 

18 a risk-free rate of return. 

19 In applying subparagraph (B), a purpose of achiev20 ing a financial accounting benefit shall not be taken 

21 into account in determining whether an organization 

22 has a substantial nontax purpose if the origin of 

23 such financial accounting benefit is a reduction of 

24 Federal income tax. 


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1 (c) DEFINITIONS AND SPECIAL RULES.—For pur2 poses of this section: 

3 (1) CONTRACT.—The term ‘‘contract’’ means a 

4 binding agreement entered into by an Executive 

5 agency for the purpose of obtaining property or serv6 ices, but does not include— 

7 (A) a contract designated by the head of 

8 the agency as assisting the agency in the per9 formance of disaster relief authorities; or 

10 (B) a contract designated by the head of 

11 the agency as necessary to the national security 

12 of the United States. 

13 (2) EXECUTIVE AGENCY.—The term ‘‘executive 

14 agency’’ has the meaning given such term in section 

15 4 of the Office of Federal Procurement Policy Act 

16 (41 U.S.C. 403). 

17 (3) OFFSHORE SECRECY JURISDICTION COM18 PANY.— 

19 (A) IN GENERAL.—The term ‘‘offshore se20 crecy jurisdiction company’’ means any person 

21 which the Commissioner of Internal Revenue 

22 determines that for the purpose of avoiding 

23 Federal tax obligations— 

24 (i) is organized in an offshore secrecy 

25 jurisdiction; or 


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1 (ii) is a member of a domestically con2 trolled group of entities any member of 

3 which is organized in an offshore secrecy 

4 jurisdiction. 

5 (B) OFFSHORE SECRECY JURISDICTION.— 

6 (i) IN GENERAL.—The term ‘‘offshore 

7 secrecy jurisdiction’’ means any foreign ju8 risdiction which is listed by the Secretary 

9 as an offshore secrecy jurisdiction for pur10 poses of this title. 

11 (ii) DETERMINATION OF JURISDIC12 TIONS ON LIST.—A jurisdiction shall be 

13 listed under clause (i) if the Secretary de14 termines that such jurisdiction has cor15 porate, business, bank, or tax secrecy rules 

16 and practices which, in the judgment of 

17 the Secretary, unreasonably restrict the 

18 ability of the United States to obtain infor19 mation relevant to the enforcement of the 

20 Internal Revenue Code of 1986, unless the 

21 Secretary also determines that such coun22 try has effective information exchange 

23 practices. 

24 (iii) SECRECY OR CONFIDENTIALITY

25 RULES AND PRACTICES.—For purposes of 


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1 clause (ii), corporate, business, bank, or 

2 tax secrecy or confidentiality rules and 

3 practices include both formal laws and reg4 ulations and informal government or busi5 ness practices having the effect of inhib6 iting access of law enforcement and tax ad7 ministration authorities to beneficial own8 ership and other financial information. 

9 (iv) INEFFECTIVE INFORMATION EX10 CHANGE PRACTICES.—For purposes of 

11 clause (ii), a jurisdiction shall be deemed 

12 to have ineffective information exchange 

13 practices unless the Secretary determines, 

14 on an annual basis, that— 

15 (I) such jurisdiction has in effect 

16 a treaty or other information ex17 change agreement with the United 

18 States that provides for the prompt, 

19 obligatory, and automatic exchange of 

20 such information as is forseeably rel21 evant for carrying out the provisions 

22 of the treaty or agreement or the ad23 ministration or enforcement of such 

24 Code, 


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1 (II) during the 12-month period 

2 preceding the annual determination, 

3 the exchange of information between 

4 the United States and such jurisdic5 tion was in practice adequate to pre6 vent evasion or avoidance of United 

7 States income tax by United States 

8 persons and to enable the United 

9 States effectively to enforce such 

10 Code, and 

11 (III) during the 12-month period 

12 preceding the annual determination, 

13 such jurisdiction was not identified by 

14 an intergovernmental group or organi15 zation of which the United States is a 

16 member as uncooperative with inter17 national tax enforcement or informa18 tion exchange and the United States 

19 concurs in such identification. 

20 (v) INITIAL LIST OF OFFSHORE SE21 CRECY JURISDICTIONS.—For purposes of 

22 this subparagraph, each of the following 

23 foreign jurisdictions, which have been pre24 viously and publicly identified by the Inter25 nal Revenue Service as secrecy jurisdicVerDate Aug 31 2005 22:03 Jun 18, 2008 Jkt 069200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S3139.IS S3139

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1 tions in Federal court proceedings, shall be 

2 deemed listed by the Secretary as an off3 shore secrecy jurisdiction unless delisted by 

4 the Secretary under clause (vi)(II): 

5 (I) Anguilla. 

6 (II) Antigua and Barbuda. 

7 (III) Aruba. 

8 (IV) Bahamas. 

9 (V) Barbados. 

10 (VI) Belize. 

11 (VII) Bermuda. 

12 (VIII) British Virgin Islands. 

13 (IX) Cayman Islands. 

14 (X) Cook Islands. 

15 (XI) Costa Rica. 

16 (XII) Cyprus. 

17 (XIII) Dominica. 

18 (XIV) Gibraltar. 

19 (XV) Grenada. 

20 (XVI) Guernsey/Sark/Alderney. 

21 (XVII) Hong Kong. 

22 (XVIII) Isle of Man. 

23 (XIX) Jersey. 

24 (XX) Latvia. 

25 (XXI) Liechtenstein. 


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1 (XXII) Luxembourg. 

2 (XXIII) Malta. 

3 (XXIV) Nauru. 

4 (XXV) Netherlands Antilles. 

5 (XXVI) Panama. 

6 (XXVII) Samoa. 

7 (XXVIII) St. Kitts and Nevis. 

8 (XXIX) St. Lucia. 

9 (XXX) St. Vincent and the Gren10 adines. 

11 (XXXI) Singapore. 

12 (XXXII) Switzerland. 

13 (XXXIII) Turks and Caicos. 

14 (XXXIV) Vanuatu. 

15 (vi) MODIFICATIONS TO LIST.—The 

16 Secretary— 

17 (I) shall add to the list under 

18 clause (i) jurisdictions which meet the 

19 requirements of clause (ii), and 

20 (II) may remove from such list 

21 only those jurisdictions which meet 

22 none of the requirements of clause 

23 (ii). 


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1 (C) DOMESTICALLY CONTROLLED GROUP

2 OF ENTITIES.—For purposes of this sub3 section— 

4 (i) IN GENERAL.—The term ‘‘domesti5 cally controlled group of entities’’ means a 

6 controlled group of entities the common 

7 parent of which is a domestic corporation. 

8 (ii) CONTROLLED GROUP OF ENTI9 TIES.—The term ‘‘controlled group of enti10 ties’’ means a controlled group of corpora11 tions as defined in section 1563(a)(1) of 

12 the Internal Revenue Code of 1986, except 

13 that— 

14 (I) ‘‘more than 50 percent’’ shall 

15 be substituted for ‘‘at least 80 per16 cent’’ each place it appears therein, 

17 and 

18 (II) the determination shall be 

19 made without regard to subsections 

20 (a)(4) and (b)(2) of section 1563 of 

21 such Code. 

22 A partnership or any other entity (other 

23 than a corporation) shall be treated as a 

24 member of a controlled group of entities if 

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1 ing of section 954(d)(3) of such Code) by 

2 members of such group (including any en3 tity treated as a member of such group by 

4 reason of this sentence). 

5 (4) PERSON.—The term ‘‘person’’ means— 

6 (A) a corporation; or 

7 (B) a partnership or any other entity 

8 (other than a corporation). 

9 (5) SECRETARY.—The term ‘‘Secretary’’ means 

10 the Secretary of the Treasury or the Secretary’s del11 egate. 

12 (d) REPORT.—The Secretary shall make an annual 

13 report to Congress and the Office of Management and 

14 Budget beginning 1 year after the effective date of this 

15 section regarding efforts to make determinations regard16 ing persons purposefully organized in an offshore secrecy 

17 jurisdiction to avoid Federal tax obligations. 

18 (e) EFFECTIVE DATE.—This section shall apply to 

19 contracts and grants awarded after the date which is 210 

20 days after the date of the enactment of this Act. 

21 SEC. 103. PROHIBITION ON CONTRACTING WITH COMPA22 NIES WITHOUT FINANCIAL REPORT CERTIFI23 CATIONS. 

24 (a) PROHIBITION ON CONTRACTING WITH COMPA25 NIES THAT FAIL TO CERTIFY FINANCIAL REPORTS.—ExVerDate Aug 31 2005 22:03 Jun 18, 2008 Jkt 069200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S3139.IS S3139

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1 cept as provided under subsection (c), the head of an exec2 utive agency may not enter into or approve any contract 

3 or approve any subcontract under a contract with any 

4 company filing periodic reports under section 13(a) or 

5 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 

6 78m, 78o(d)) that has failed to make the certification re7 quired under section 302(a) of the Sarbanes-Oxley Act of 

8 2002 (15 U.S.C. 7241(a)) for the most recent periodic re9 port due. 

10 (b) PERIOD OF PROHIBITION.—A prohibition under 

11 subsection (a) shall remain in effect with respect to a com12 pany for the one-year period beginning on the date that 

13 the periodic report for which the certification was not 

14 made was due. 

15 (c) WAIVER.— 

16 (1) IN GENERAL.—The head of an executive 

17 agency may waive the prohibition under subsection 

18 (a) with respect to a contract if such agency head 

19 determines that— 

20 (A) the waiver is in the national security 

21 interest of the United States; or 

22 (B) the failure of the company to make the 

23 certification required under section 302(a) of 

24 the Sarbanes-Oxley Act of 2002 (15 U.S.C. 

25 7241(a)) was a minor or technical infraction. 


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1 (2) JUSTIFICATIONS.— 

2 (A) NATIONAL SECURITY WAIVER.—The 

3 head of an executive agency granting a waiver 

4 under paragraph (1)(A) shall submit a justifica5 tion for the waiver to the Director of the Office 

6 of Management and Budget and the chairs and 

7 ranking members of the appropriate oversight 

8 committees of Congress. 

9 (B) WAIVER FOR MINOR OR TECHNICAL

10 INFRACTION.—The head of an executive agency 

11 granting a waiver under paragraph (1)(B) 

12 shall, in coordination with the company for 

13 which the waiver is granted— 

14 (i) submit a justification for the waiv15 er to the Director of the Office of Manage16 ment and Budget and the chairs and rank17 ing members of the appropriate oversight 

18 committees of Congress; and 

19 (ii) post the justification on the 

20 searchable website required under the Fed21 eral Funding Accountability and Trans22 parency Act of 2006 (Public Law 109– 

23 282; 31 U.S.C. 6101 note). 

24 (d) LIST OF COMPANIES FAILING TO CERTIFY.—The 

25 Securities and Exchange Commission shall make publicly 


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1 available on the searchable website required under the 

2 Federal Funding Accountability and Transparency Act of 

3 2006 (Public Law 109–282; 31 U.S.C. 6101 note) a list 

4 of the companies that failed to make the certification re5 quired under section 302(a) of the Sarbanes-Oxley Act of 

6 2002 (15 U.S.C. 7241(a)) for the most recent periodic re7 port due. The list shall be updated on a quarterly basis. 

8 (e) APPLICABILITY.—This section applies to con9 tracts and subcontracts entered into after the date of the 

10 enactment of this Act. 

11 SEC. 104. REQUIREMENT FOR FEDERAL CONTRACTORS TO 

12 POSSESS SATISFACTORY RECORD OF INTEG13 RITY AND BUSINESS ETHICS. 

14 (a) DEFENSE CONTRACTORS.— 

15 (1) IN GENERAL.—Chapter 137 of title 10, 

16 United States Code, is amended by inserting after 

17 section 2305a the following new section: 

18 ‘‘§ 2305b. Satisfactory record of integrity and busi19 ness ethics 

20 ‘‘(a) IN GENERAL.—No prospective contractor may 

21 be awarded a contract with an agency under this title un22 less the contracting officer for the contract determines 

23 that such prospective contractor has a satisfactory record 

24 of integrity and business ethics, including satisfactory 

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1 ment, environmental, antitrust, and consumer protection 

2 laws). 

3 ‘‘(b) INFORMATION TO BE CONSIDERED.—In mak4 ing a determination as to whether a prospective contractor 

5 has a satisfactory record of integrity and business ethics, 

6 a contracting officer— 

7 ‘‘(1) shall consider all relevant credible informa8 tion, but shall give the greatest weight to violations 

9 of law that have been adjudicated within the last 5 

10 years preceding the offer; 

11 ‘‘(2) shall give consideration to any administra12 tive agreements entered into with the prospective 

13 contractor if the prospective contractor has taken 

14 corrective action after disclosing a violation of law, 

15 and may consider such a contractor to be a respon16 sible contractor if the contractor has corrected the 

17 conditions that led to the misconduct; 

18 ‘‘(3) shall consider failure to comply with the 

19 terms of an administrative agreement as evidence of 

20 a lack of integrity and business ethics under this 

21 section; 

22 ‘‘(4) shall consider in descending order of im23 portance— 


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1 ‘‘(A) convictions of and civil judgments 

2 rendered against the prospective contractor 

3 for— 

4 ‘‘(i) commission of fraud or a criminal 

5 offense in connection with obtaining, at6 tempting to obtain, or performing a public 

7 Federal, State, or local contract or sub8 contract; 

9 ‘‘(ii) violation of Federal or State 

10 antitrust law relating to the submission of 

11 offers; or 

12 ‘‘(iii) commission of embezzlement, 

13 theft, forgery, bribery, falsification, or de14 struction of records, making false state15 ment, tax evasion, or receiving stolen prop16 erty; and 

17 ‘‘(B) relative to tax, labor, employment, 

18 environmental, antitrust, or consumer protec19 tion laws— 

20 ‘‘(i) Federal or State felony convic21 tions; 

22 ‘‘(ii) adverse Federal court judgments 

23 in civil cases brought by the United States; 


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1 ‘‘(iii) adverse decisions by a Federal 

2 administrative law judge, board, or com3 mission indicating violations of law; 

4 ‘‘(iv) Federal or State felony indict5 ments; and 

6 ‘‘(v) any other civil judgment rendered 

7 against the prospective contractor; and 

8 ‘‘(5) may consider other relevant information, 

9 such as civil or administrative complaints or similar 

10 actions filed by or on behalf of a Federal agency, 

11 board, or commission, if such action reflects an ad12 judicated determination by the agency. 

13 ‘‘(c) REPEATED VIOLATIONS OF LAW.—A single vio14 lation of law normally should not give rise to a determina15 tion that the prospective contractor has an unsatisfactory 

16 record of integrity and business ethics, but evidence of re17 peated, pervasive, or significant violations of the law may 

18 indicate an unsatisfactory record of integrity and business 

19 ethics.’’. 

20 (2) CLERICAL AMENDMENT.—The table of sec21 tions at the beginning of such chapter is amended 

22 by inserting after the item relating to section 2305a 

23 the following new item: 

‘‘2305b. Contractor requirement for satisfactory record of integrity and business 

ethics.’’. 


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1 (b) CIVILIAN CONTRACTORS.—Title III of the Fed2 eral Property and Administrative Services Act of 1949 (41 

3 U.S.C. 251 et seq.) is amended by inserting after section 

4 303L the following new section: 

5 ‘‘SEC. 303M. SATISFACTORY RECORD OF INTEGRITY AND 

6 BUSINESS ETHICS. 

7 ‘‘(a) IN GENERAL.—No prospective contractor may 

8 be awarded a contract with an executive agency under this 

9 title unless the contracting officer for the contract deter10 mines that such prospective contractor has a satisfactory 

11 record of integrity and business ethics, including satisfac12 tory compliance with the law (including tax, labor and em13 ployment, environmental, antitrust, and consumer protec14 tion laws). 

15 ‘‘(b) INFORMATION TO BE CONSIDERED.—In mak16 ing a determination as to whether a prospective contractor 

17 has a satisfactory record of integrity and business ethics, 

18 a contracting officer— 

19 ‘‘(1) shall consider all relevant credible informa20 tion, but shall give the greatest weight to violations 

21 of law that have been adjudicated within the last 5 

22 years preceding the offer; 

23 ‘‘(2) shall give consideration to any administra24 tive agreements entered into with the prospective 

25 contractor if the prospective contractor has taken 


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1 corrective action after disclosing a violation of law, 

2 and may consider such a contractor to be a respon3 sible contractor if the contractor has corrected the 

4 conditions that led to the misconduct; 

5 ‘‘(3) shall consider failure to comply with the 

6 terms of an administrative agreement as evidence of 

7 a lack of integrity and business ethics under this 

8 section; 

9 ‘‘(4) shall consider in descending order of im10 portance— 

11 ‘‘(A) convictions of and civil judgments 

12 rendered against the prospective contractor 

13 for— 

14 ‘‘(i) commission of fraud or a criminal 

15 offense in connection with obtaining, at16 tempting to obtain, or performing a public 

17 Federal, State, or local contract or sub18 contract; 

19 ‘‘(ii) violation of Federal or State 

20 antitrust law relating to the submission of 

21 offers; or 

22 ‘‘(iii) commission of embezzlement, 

23 theft, forgery, bribery, falsification, or de24 struction of records, making false stateVerDate Aug 31 2005 22:03 Jun 18, 2008 Jkt 069200 PO 00000 Frm 00021 Fmt 6652 Sfmt 6201 E:\BILLS\S3139.IS S3139

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1 ment, tax evasion, or receiving stolen prop2 erty; and 

3 ‘‘(B) relative to tax, labor, employment, 

4 environmental, antitrust, or consumer protec5 tion laws— 

6 ‘‘(i) Federal or State felony convic7 tions; 

8 ‘‘(ii) adverse Federal court judgments 

9 in civil cases brought by the United States; 

10 ‘‘(iii) adverse decisions by a Federal 

11 administrative law judge, board, or com12 mission indicating violations of law; and 

13 ‘‘(iv) Federal or State felony indict14 ments; and 

15 ‘‘(5) may consider other relevant information, 

16 such as civil or administrative complaints or similar 

17 actions filed by or on behalf of an executive agency, 

18 board, or commission, if such action reflects an ad19 judicated determination by the agency. 

20 ‘‘(c) REPEATED VIOLATIONS OF LAW.—A single vio21 lation of law normally should not give rise to a determina22 tion that the prospective contractor has an unsatisfactory 

23 record of integrity and business ethics, but evidence of re24 peated, pervasive, or significant violations of the law may 


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1 indicate an unsatisfactory record of integrity and business 

2 ethics.’’. 

3 (c) EFFECTIVE DATE.—The amendments made by 

4 this section shall apply with respect to contracts for which 

5 solicitations are issued after the date of the enactment of 

6 this Act. 

7 SEC. 105. PREVENTING CONFLICTS OF INTEREST OF CON8 TRACTOR PERSONNEL. 

9 (a) IN GENERAL.—The head of an executive agency 

10 may not enter into a covered contract unless the contract 

11 includes a conflicts of interest clause as described in sub12 section (b). 

13 (b) CONFLICT OF INTEREST CLAUSE.—The conflict 

14 of interest clause required under subsection (a) shall in15 clude the following: 

16 (1) A requirement that no employee of the con17 tractor may perform a covered function relating to 

18 a program, company, contract, or other matter in 

19 which the employee (or a member of the employee’s 

20 immediate family) has a financial interest without 

21 the express written approval of the contracting offi22 cer. 

23 (2) A requirement that the contractor shall ob24 tain, review, update, and maintain as part of its per25 sonnel records a financial disclosure statement from 


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1 each employee assigned to perform a covered func2 tion under the contract sufficient to enable the con3 tractor to verify compliance of such employee with 

4 the requirements under paragraph (1). 

5 (3) A prohibition against employees of the con6 tractor responsible for performing a covered function 

7 under the contract relating to a program, company, 

8 contract, or other matter from accepting a gift from 

9 the company or from an individual or entity that has 

10 a financial interest in the program, company, con11 tract, or other matter. 

12 (4) A prohibition against contractor personnel 

13 who have access to non-public government informa14 tion obtained while performing work on the contract 

15 from using such information for personal gain. 

16 (5) A requirement that the contractor take ap17 propriate disciplinary action in the case of employees 

18 who fail to comply with requirements and prohibi19 tions described in this subsection. 

20 (6) A requirement for the contractor to prompt21 ly report any failure to comply with such require22 ments and prohibitions to the contracting officer. 

23 (7) Penalties for failures to comply with the re24 quirements and prohibitions described in paragraphs 

25 (1) through (6). 


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1 (8) A requirement that the contractor report 

2 any failure to comply with the requirements and pro3 hibitions described in paragraphs (1) through (6) to 

4 the applicable contracting officer of the executive 

5 agency or representative of such officer as soon as 

6 such failure is identified. 

7 (9) Such additional safeguards, definitions, and 

8 exceptions as may be necessary to safeguard the 

9 public interest. 

10 (c) DEFINITIONS.—In this section: 

11 (1) The term ‘‘covered contract’’ means a con12 tract (or task or delivery order) in excess of 

13 $500,000 for the performance of functions closely 

14 associated with governmental functions. 

15 (2) The term ‘‘covered function’’ means an in16 herently governmental function or a function de17 scribed in section 7.503(d) of the Federal Acquisi18 tion Regulation. 

19 (d) EFFECTIVE DATE; APPLICABILITY.—This section 

20 shall take effect on the date that is 30 days after the date 

21 of the enactment of this Act and shall apply to— 

22 (1) contracts entered into on or after such ef23 fective date; and 

24 (2) task or delivery orders awarded on or after 

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1 tracts pursuant to which such task or delivery orders 

2 are awarded were entered into before, on, or after 

3 such effective date. 

4 SEC. 106. AWARD FEES. 

5 (a) LINKAGE OF AWARD FEES TO SUCCESSFUL AC6 QUISITION OUTCOMES.—Every contract entered into by 

7 an executive agency that provides for award fees shall link 

8 such fees to successful acquisition outcomes (which out9 comes shall be specified in terms of cost, schedule, and 

10 performance). 

11 (b) PROHIBITION ON AWARD OF UNWARRANTED

12 AWARD FEES.—The head of an executive agency may 

13 not— 

14 (1) award a bonus or other incentive payment 

15 to a contractor for work the contractor did not per16 form or with respect to which the contractor received 

17 a poor performance rating; or 

18 (2) provide to a contractor award fees unless 

19 the contractor, to the extent reasonably within the 

20 control of the contractor, achieved the successful ac21 quisition outcome to which such fees were linked 

22 under the contract. 


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1 TITLE II—COMPETITION AND 

2 TRANSPARENCY 

3 SEC. 201. DATABASE FOR CONTRACTING OFFICERS. 

4 (a) DATABASE.— 

5 (1) IN GENERAL.—Subject to the authority, di6 rection, and control of the Director of the Office of 

7 Management and Budget, the Administrator of Gen8 eral Services shall establish and maintain a database 

9 of information regarding integrity and performance 

10 of persons awarded Federal contracts and grants for 

11 use by Federal officials having authority over con12 tracts and grants. 

13 (2) PERSONS COVERED.—The database shall 

14 cover any person awarded a Federal contract or 

15 grant if any information described in paragraph (3) 

16 exists with respect to such person. 

17 (3) INFORMATION INCLUDED.—With respect to 

18 a person awarded a Federal contract or grant, the 

19 database shall include information (in the form of a 

20 brief description) for at least the most recent 5-year 

21 period regarding— 

22 (A) all Federal contracts and grants 

23 awarded to the person that were terminated in 

24 such period due to default; 


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1 (B) all Federal suspensions and 

2 debarments of the person in that period; 

3 (C) all Federal administrative agreements 

4 entered into by the person and the Federal 

5 Government in that period to resolve a suspen6 sion or debarment proceeding and, to the max7 imum extent practicable, agreements involving a 

8 suspension or debarment proceeding entered 

9 into by the person and a State government in 

10 that period; 

11 (D) all final findings by a Federal official 

12 in that period that the person has been deter13 mined not to be a responsible source under ei14 ther subparagraph (C) or (D) of section 4(7) of 

15 the Office of Federal Procurement Policy Act 

16 (41 U.S.C. 403(7)); 

17 (E) evidence of repeated, pervasive, or sig18 nificant violations of the law that may indicate 

19 an unsatisfactory record of integrity and busi20 ness ethics; 

21 (F) all convictions of, or civil judgments 

22 rendered against, the prospective contractor 

23 for— 

24 (i) commission of fraud or a criminal 

25 offense in connection with obtaining, atVerDate Aug 31 2005 22:03 Jun 18, 2008 Jkt 069200 PO 00000 Frm 00028 Fmt 6652 Sfmt 6201 E:\BILLS\S3139.IS S3139

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1 tempting to obtain, or performing a public 

2 Federal, State, or local government con3 tract or subcontract; 

4 (ii) violation of Federal or State anti5 trust law relating to the submission of of6 fers; and 

7 (iii) commission of embezzlement, 

8 theft, forgery, bribery, falsification, or ob9 struction of records, making a false state10 ment, tax evasion, or receiving stolen prop11 erty; 

12 (G) relative to tax, labor, employment, en13 vironmental, antitrust, or consumer protection 

14 laws— 

15 (i) all Federal or State felony convic16 tions; 

17 (ii) all adverse Federal court judg18 ments in civil cases brought by the United 

19 States; 

20 (iii) all adverse decisions by a Federal 

21 administrative law judge, board, or com22 mission indicating violations of law; 

23 (iv) all Federal or State felony indict24 ments; and 


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1 (v) any other civil judgment rendered 

2 against the prospective contractor; 

3 (H) all administrative agreements or com4 pliance agreements entered into between an ex5 ecutive agency and the contractor; 

6 (I) all civil or administrative complains or 

7 similar actions filed by or on behalf of a Fed8 eral agency, board, or commission; and 

9 (J) other information, such as civil or ad10 ministrative complaints or similar actions filed 

11 by or on behalf of a Federal agency, board, or 

12 commission, determined by the Director of the 

13 Office of Management and Budget to be rel14 evant. 

15 (4) REQUIREMENTS RELATING TO INFORMA16 TION IN DATABASE.— 

17 (A) DIRECT INPUT AND UPDATE.—The 

18 Administrator of General Services shall design 

19 and maintain the database in a manner that al20 lows the appropriate officials of each Federal 

21 agency to directly input and update in the data22 base information relating to actions it has 

23 taken with regard to contractors or grant re24 cipients. 


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•S 3139 IS

1 (B) TIMELINESS AND ACCURACY.—The 

2 Administrator shall develop policies to require— 

3 (i) the timely and accurate input of 

4 information into the database; 

5 (ii) notification of any covered person 

6 when information relevant to the person is 

7 entered into the database; and 

8 (iii) an opportunity for any covered 

9 person to append comments to information 

10 about such person in the database. 

11 (5) AVAILABILITY.— 

12 (A) AVAILABILITY TO ALL EXECUTIVE

13 AGENCIES AND CONGRESS.—The Administrator 

14 shall make the database available to all execu15 tive agencies and Congress. 

16 (B) LIMITATION.—This subsection does 

17 not require the public availability of information 

18 that is exempt from public disclosure under sec19 tion 552(b) of title 5, United States Code. 

20 (b) REVIEW OF DATABASE.— 

21 (1) REQUIREMENT TO REVIEW DATABASE.— 

22 Prior to the award of a contract or grant, an official 

23 responsible for awarding a contract or grant shall 

24 review the database established under subsection (a). 


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1 (2) REQUIREMENT TO DOCUMENT PRESENT RE2 SPONSIBILITY.—In the case of a prospective awardee 

3 of a contract or grant against which a judgment or 

4 conviction has been rendered more than once within 

5 any 3-year period for the same or similar offences, 

6 if each judgment or conviction is a cause for debar7 ment, the official responsible for awarding the con8 tract or grant shall document why the prospective 

9 awardee is considered presently responsible. 

10 (c) DISCLOSURE IN APPLICATIONS.— 

11 (1) REQUIREMENT.—Not later than 180 days 

12 after the date of the enactment of this Act, the Fed13 eral Acquisition Regulation shall be amended to re14 quire that in applying for any Federal grant or sub15 mitting a proposal or bid for any Federal contract 

16 a person shall disclose in writing information de17 scribed in subsection (a)(3). 

18 (2) COVERED CONTRACTS AND GRANTS.—This 

19 subsection shall apply only to contracts and grants 

20 in an amount greater than the simplified acquisition 

21 threshold, as defined in section 4(11) of the Office 

22 of Federal Procurement Policy Act (41 U.S.C. 

23 401(11)). 

24 (d) AUTHORIZATION OF APPROPRIATIONS.—There 

25 are authorized to be appropriated to the Administrator of 


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1 General Services such funds as may be necessary to estab2 lish the database described in subsection (a). 

3 (e) REPORT TO CONGRESS.— 

4 (1) REPORT REQUIRED.—Not later than 180 

5 days after the date of the enactment of this Act, the 

6 Administrator of General Services shall submit to 

7 Congress a report. 

8 (2) CONTENTS OF REPORT.—The report shall 

9 contain the following: 

10 (A) A list of all databases that include in11 formation about Federal contracting and Fed12 eral grants. 

13 (B) Recommendations for further legisla14 tion or administrative action that the Adminis15 trator considers appropriate to create a central16 ized, comprehensive Federal contracting and 

17 Federal grant database. 

18 SEC. 202. ENHANCEMENT OF CONTRACTING INFORMATION 

19 DISCLOSED ON USASPENDING.GOV. 

20 The Director of the Office of Management and Budg21 et shall maintain on the searchable website required under 

22 the Federal Funding Accountability and Transparency 

23 Act of 2006 (Public Law 109–282; 31 U.S.C. 6101 note) 

24 the following information: 


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1 (1) A detailed description of the type and pur2 pose of work to be performed under each contract 

3 included on the website, unless the inclusion of such 

4 information is determined by the Director not to be 

5 in the interest of the United States in the case of 

6 a contract awarded in connection with a national 

7 emergency, a national security situation, or in the 

8 national defense. 

9 (2) Sworn affidavits by procurement managers 

10 and political appointees involved in the award of a 

11 contract stating that they complied with contracting 

12 rules regarding full and open competition, including 

13 the restrictions on disclosing and obtaining con14 tractor bid or proposal information or source selec15 tion information under section 27 of the Office of 

16 Federal Procurement Policy Act (41 U.S.C. 423), 

17 and addressing any conflicts of interest. 

18 (3) Award fees awarded to contractors and jus19 tifications for such award fees. 

20 (4) Contractors performing work under con21 tracts that is closely associated with inherently gov22 ernmental functions (as that term is described in 

23 section 7.503 of the Federal Acquisition Regulation). 

24 (5) The identities of any senior personnel, offi25 cers, or board members of, or senior lobbyists or 


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•S 3139 IS

1 consultants for, contractors who serve in a capacity 

2 where they provide media commentary on the per3 formance of an executive agency. 

4 (6) The price range of bids that were competi5 tive with the winning bid for each contract included 

6 on the website, including the lowest price, median 

7 price, and highest price. 

8 (7) The performance range of the top 100 Fed9 eral contractors (according to value of contracts 

10 awarded per fiscal year), including a listing of rat11 ings for unsatisfactory performance, performance 

12 meeting expectations, and performance exceeding ex13 pectations. 

14 (8) For each contractor included on the 

15 website, a list of executive agencies for which the 

16 contractor is currently performing services under a 

17 contract. 

18 (9) Any administrative agreements or compli19 ance agreements entered into between an executive 

20 agency and a contractor with respect to a contract 

21 included on the website. 


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•S 3139 IS

1 TITLE III—BUILDING A BETTER 

2 FEDERAL GOVERNMENT 

3 WORKFORCE 

4 SEC. 301. CONTRACTORS AND INHERENTLY GOVERN5 MENTAL FUNCTIONS. 

6 (a) DEPARTMENT OF DEFENSE.— 

7 (1) REPORT ON PERFORMANCE BY CONTRAC8 TORS OF CERTAIN FUNCTIONS.—Not later than 120 

9 days after the date of the enactment of this Act, the 

10 Inspector General of the Department of Defense 

11 shall submit to the Secretary of Defense and the 

12 Committees on Armed Services of the Senate and 

13 the House of Representatives a report listing func14 tions of the Department that are inherently govern15 mental functions or are closely associated with the 

16 performance of inherently governmental functions 

17 and are performed by contractor personnel. 

18 (2) STAFFING PLAN.—Not later than 120 days 

19 after the submission of the report required under 

20 subsection (a), the Secretary of Defense shall submit 

21 to the Committees on Armed Services of the Senate 

22 and the House of Representatives a plan for staffing 

23 with Department of Defense personnel the functions 

24 identified in such report. 


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1 (3) INCREMENTAL STAFFING REQUIRE2 MENTS.— 

3 (A) ONE YEAR AFTER INSPECTOR GEN4 ERAL REPORT.—Not later than one year after 

5 the submission of the report required under 

6 subsection (a), the Secretary of Defense shall— 

7 (i) ensure that— 

8 (I) at least 50 percent of the 

9 functions identified in the report as 

10 inherently governmental functions are 

11 staffed by Department of Defense 

12 personnel; 

13 (II) at least 10 percent of the 

14 functions identified in the report as 

15 closely associated with the perform16 ance of inherently governmental func17 tions are staffed by Department of 

18 Defense personnel; and 

19 (III) the remainder of the func20 tions identified in the report as inher21 ently governmental functions or as 

22 closely associated with the perform23 ance of inherently governmental func24 tions are individually screened for poVerDate Aug 31 2005 22:03 Jun 18, 2008 Jkt 069200 PO 00000 Frm 00037 Fmt 6652 Sfmt 6201 E:\BILLS\S3139.IS S3139

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1 tential conflicts of interest involving 

2 contractor personnel; and 

3 (ii) implement a contract oversight 

4 plan within the Department of Defense to 

5 mitigate the risk that functions identified 

6 as inherently governmental functions or as 

7 closely associated with the performance of 

8 inherently governmental functions are per9 formed by contractor personnel, particu10 larly personnel who may experience con11 flicts of interest. 

12 (B) TWO YEARS AFTER INSPECTOR GEN13 ERAL REPORT.—Not later than two years after 

14 the submission of the report required under 

15 subsection (a), the Secretary of Defense shall 

16 ensure that— 

17 (i) all functions identified in the re18 port as inherently governmental functions 

19 are staffed by Department of Defense per20 sonnel; 

21 (ii) at least 30 percent of the func22 tions identified in the report as closely as23 sociated with the performance of inherently 

24 governmental functions are staffed by De25 partment of Defense personnel; and 


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1 (iii) the remainder of the functions 

2 identified in the report as inherently gov3 ernmental functions or as closely associ4 ated with the performance of inherently 

5 governmental functions are individually 

6 screened for potential conflicts of interest 

7 involving contractor personnel. 

8 (C) THREE YEARS AFTER INSPECTOR GEN9 ERAL REPORT.—Not later than three years 

10 after the submission of the report required 

11 under subsection (a), the Secretary of Defense 

12 shall ensure that at least 50 percent of the 

13 functions identified in the report as closely as14 sociated with the performance of inherently gov15 ernmental functions are staffed by Department 

16 of Defense personnel. 

17 (b) DEPARTMENT OF HOMELAND SECURITY.— 

18 (1) REPORT ON PERFORMANCE BY CONTRAC19 TORS OF CERTAIN FUNCTIONS.—Not later than 120 

20 days after the date of the enactment of this Act, the 

21 Inspector General of the Department of Homeland 

22 Security shall submit to the Secretary of Homeland 

23 Security and the Committee on Homeland Security 

24 and Governmental Affairs of the Senate and the 

25 Committee on Homeland Security of the House of 


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•S 3139 IS

1 Representatives a report listing functions of the De2 partment that are inherently governmental functions 

3 or are closely associated with the performance of in4 herently governmental functions and are performed 

5 by contractor personnel. 

6 (2) STAFFING PLAN.—Not later than 120 days 

7 after the submission of the report required under 

8 subsection (a), the Secretary of Homeland Security 

9 shall submit to the Committee on Homeland Secu10 rity and Governmental Affairs of the Senate and the 

11 Committee on Homeland Security of the House of 

12 Representatives a plan for staffing with Department 

13 of Homeland Security personnel the functions identi14 fied in such report. 

15 (3) INCREMENTAL STAFFING REQUIRE16 MENTS.— 

17 (A) ONE YEAR AFTER INSPECTOR GEN18 ERAL REPORT.—Not later than one year after 

19 the submission of the report required under 

20 subsection (a), the Secretary of Homeland Se21 curity shall— 

22 (i) ensure that— 

23 (I) at least 50 percent of the 

24 functions identified in the report as 

25 inherently governmental functions are 


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•S 3139 IS

1 staffed by Department of Homeland 

2 Security personnel; 

3 (II) at least 10 percent of the 

4 functions identified in the report as 

5 closely associated with the perform6 ance of inherently governmental func7 tions are staffed by Department of 

8 Homeland Security personnel; and 

9 (III) the remainder of the func10 tions identified in the report as inher11 ently governmental functions or as 

12 closely associated with the perform13 ance of inherently governmental func14 tions are individually screened for po15 tential conflicts of interest involving 

16 contractor personnel; and 

17 (ii) implement a contract oversight 

18 plan within the Department of Homeland 

19 Security to mitigate the risk that functions 

20 identified as inherently governmental func21 tions or as closely associated with the per22 formance of inherently governmental func23 tions are performed by contractor per24 sonnel, particularly personnel who may ex25 perience conflicts of interest. 


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1 (B) TWO YEARS AFTER INSPECTOR GEN2 ERAL REPORT.—Not later than two years after 

3 the submission of the report required under 

4 subsection (a), the Secretary of Homeland Se5 curity shall ensure that— 

6 (i) all functions identified in the re7 port as inherently governmental functions 

8 are staffed by Department of Homeland 

9 Security personnel; 

10 (ii) at least 30 percent of the func11 tions identified in the report as closely as12 sociated with the performance of inherently 

13 governmental functions are staffed by De14 partment of Homeland Security personnel; 

15 and 

16 (iii) the remainder of the functions 

17 identified in the report as inherently gov18 ernmental functions or as closely associ19 ated with the performance of inherently 

20 governmental functions are individually 

21 screened for potential conflicts of interest 

22 involving contractor personnel. 

23 (C) THREE YEARS AFTER INSPECTOR GEN24 ERAL REPORT.—Not later than three years 

25 after the submission of the report required 


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1 under subsection (a), the Secretary of Home2 land Security shall ensure that at least 50 per3 cent of the functions identified in the report as 

4 closely associated with the performance of in5 herently governmental functions are staffed by 

6 Department of Homeland Security personnel. 

7 TITLE IV—DISCLOSURE 

8 EXCEPTIONS 

9 SEC. 401. EXCEPTIONS TO DISCLOSURE REQUIREMENTS. 

10 Nothing in this Act shall be construed to require the 

11 disclosure of the following information: 

12 (1) Information exempted from disclosure under 

13 the Federal Acquisition Regulation, the Defense 

14 Federal Acquisition Regulation Supplement, Subpart 

15 206.3, and the Agency for International Develop16 ment Acquisition Regulations, Subpart 706.3. 

17 (2) Information exempted from disclosure pur18 suant to— 

19 (A) paragraphs (1) through (7) of section 

20 2304(c) of title 10, United States Code; or 

21 (B) paragraphs (1) through (7) of section 

22 303(c) of the Federal Property and Administra23 tive Services Act of 1949 (41 U.S.C. 253(c)(1)– 

24 (7)). 


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1 (3) Information exempt from disclosure in ac2 cordance with contracting procedures designed to 

3 promote procurement opportunities for minority and 

4 women small business owners. 

5 (4) Information exempt from disclosure in ac6 cordance with the exercise of special emergency pro7 curement authority exercised under section 32A of 

8 the Office of Federal Procurement Policy Act (41 

9 U.S.C. 428a). 

10 (5) Proprietary information. 

Æ 


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