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(5) ACTION
FOLLOWING
DETERMINATION
OF
VALID CHALLENGE.—If the Secretary of a military
department or head of a Defense Agency determines
under paragraph (4)(A) that a challenge under this
subsection to a list under this section is valid, such
official shall—
(A) notify the Secretary of Defense of the
determination; and
(B) adjust the next list submitted by such
official under subsection (a) after the date of the
determination to reflect the resolution of the
challenge.
(e) RULES OF CONSTRUCTION.—
(1) NO
AUTHORIZATION
OF
PERFORMANCE
OF
PERSONAL SERVICES.—Nothing in this section shall
be construed to authorize the performance of personal
services by a contractor except where expressly au-
thorized by a provision of statute other than this sec-
tion.
(2) NO PUBLIC-PRIVATE COMPETITION FOR CON-
VERSION
OF
PERFORMANCE
OF
CERTAIN
FUNC-
TIONS.—No public-private competition may be re-
quired under this section, Office of Management and
Budget Circular A–76, or any other provision of law
or regulation before a function closely associated with
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inherently governmental functions is converted to per-
formance by Federal employees.
(f) DEFINITIONS.—In this section:
(1) The term ‘‘Defense Agency’’ has the meaning
given that term in section 101(a) of title 10, United
States Code.
(2) The term ‘‘function closely associated with
inherently governmental functions’’ has the meaning
given that term in section 2383(b)(3) of title 10,
United States Code.
(3) The term ‘‘inherently governmental func-
tions’’ has the meaning given that term in section
2383(b)(2) of title 10, United States Code.
(4) The term ‘‘personal services contract’’ means
a contract under which, as a result of its terms or
conditions or the manner of its administration dur-
ing performance, contractor personnel are subject to
the relatively continuous supervision and control of
one or more Government officers or employees, except
that the giving of an order for a specific article or
service, with the right to reject the finished product or
result, is not the type of supervision or control that
makes a contract a personal services contract.
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SEC. 846. INTERNAL CONTROLS FOR PROCUREMENTS ON
BEHALF OF THE DEPARTMENT OF DEFENSE
BY CERTAIN NON-DEFENSE AGENCIES.
(a) LIMITATION ON PROCUREMENTS ON BEHALF OF
DEPARTMENT OF DEFENSE.—Except as provided in sub-
section (b), no official of the Department of Defense may
place an order, make a purchase, or otherwise procure prop-
erty or services for the Department of Defense in an amount
in excess of $100,000 through a non-defense agency in any
fiscal year if—
(1) the head of the non-defense agency has not
certified that the non-defense agency will comply with
defense procurement requirements during that fiscal
year;
(2) in the case of a covered non-defense agency
that has been determined under this section to be not
compliant with defense procurement requirements,
such determination has not been terminated in ac-
cordance with subsection (c); or
(3) in the case of a covered non-defense agency
for which a memorandum of understanding is re-
quired by subsection (e)(4), the Inspector General of
the Department of Defense and the Inspector General
of the non-defense agency have not yet entered into
such a memorandum of understanding.
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(b) EXCEPTION FOR PROCUREMENTS OF NECESSARY
PROPERTY AND SERVICES.—
(1) IN GENERAL.—The limitation in subsection
(a) shall not apply to the procurement of property
and services on behalf of the Department of Defense
by a non-defense agency during any fiscal year for
which there is in effect a written determination of the
Under Secretary of Defense for Acquisition, Tech-
nology, and Logistics that it is necessary in the inter-
est of the Department of Defense to procure property
and services through the non-defense agency during
such fiscal year.
(2) SCOPE OF PARTICULAR EXCEPTION.—A writ-
ten determination with respect to a non-defense agen-
cy under paragraph (1) shall apply to any category
of procurements through the non-defense agency that
is specified in the determination.
(c) TERMINATION OF APPLICABILITY OF CERTAIN LIM-
ITATION.—In the event the limitation under subsection
(a)(2) applies to a covered non-defense agency, the limita-
tion shall cease to apply to the non-defense agency on the
date on which the Inspector General of the Department of
Defense and the Inspector General of the non-defense agency
jointly—
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(1) determine that the non-defense agency is
compliant with defense procurement requirements;
and
(2) notify the Secretary of Defense of that deter-
mination.
(d) COMPLIANCE WITH DEFENSE PROCUREMENT RE-
QUIREMENTS.—For the purposes of this section, a non-de-
fense agency is compliant with defense procurement require-
ments if the procurement policies, procedures, and internal
controls of the non-defense agency applicable to the procure-
ment of products and services on behalf of the Department
of Defense, and the manner in which they are administered,
are adequate to ensure the compliance of the non-defense
agency with the requirements of laws and regulations (in-
cluding applicable Department of Defense financial man-
agement regulations) that apply to procurements of prop-
erty and services made directly by the Department of De-
fense.
(e) INSPECTORS GENERAL REVIEWS AND DETERMINA-
TIONS.—
(1) IN GENERAL.—For each covered non-defense
agency, the Inspector General of the Department of
Defense and the Inspector General of such non-defense
agency shall, not later than the date specified in
paragraph (2), jointly—
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(A) review—
(i) the procurement policies, proce-
dures, and internal controls of such non-de-
fense agency that are applicable to the pro-
curement of property and services on behalf
of the Department by such non-defense
agency; and
(ii) the administration of such policies,
procedures, and internal controls; and
(B) determine in writing whether such non-
defense agency is or is not compliant with de-
fense procurement requirements.
(2) DEADLINE FOR REVIEWS AND DETERMINA-
TIONS.—The reviews and determinations required by
paragraph (1) shall take place as follows:
(A) In the case of the General Services Ad-
ministration, by not later than March 15, 2010.
(B) In the case of each of the Department
of the Treasury, the Department of the Interior,
and the National Aeronautics and Space Admin-
istration, by not later than March 15, 2011.
(C) In the case of each of the Department
of Veterans Affairs and the National Institutes of
Health, by not later than March 15, 2012.
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(3) 
SEPARATE
REVIEWS
AND
DETERMINA-
TIONS.—The Inspector General of the Department of
Defense and the Inspector General of a covered non-
defense agency may by joint agreement conduct sepa-
rate reviews of the procurement of property and serv-
ices on behalf of the Department of Defense that are
conducted by separate business units, or under sepa-
rate governmentwide acquisition contracts, of the non-
defense agency. If such separate reviews are con-
ducted, the Inspectors General shall make a separate
determination under paragraph (1)(B) with respect
to each such separate review.
(4) MEMORANDA OF UNDERSTANDING FOR RE-
VIEWS
AND
DETERMINATIONS.—Not later than one
year before a review and determination is required
under this subsection with respect to a covered non-
defense agency, the Inspector General of the Depart-
ment of Defense and the Inspector General of the cov-
ered non-defense agency shall enter into a memo-
randum of understanding with each other to carry
out such review and determination.
(f) TREATMENT OF PROCUREMENTS FOR FISCAL YEAR
PURPOSES.—For the purposes of this section, a procure-
ment shall be treated as being made during a particular
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fiscal year to the extent that funds are obligated by the De-
partment of Defense for the procurement in that fiscal year.
(g) RESOLUTION OF DISAGREEMENTS.—If the Inspec-
tor General of the Department of Defense and the Inspector
General of a covered non-defense agency are unable to agree
on a joint determination under subsection (c) or (e), a de-
termination by the Inspector General of the Department of
Defense under such subsection shall be conclusive for the
purposes of this section.
(h) DEFINITIONS.—In this section:
(1) The term ‘‘covered non-defense agency’’
means each of the following:
(A) The General Services Administration.
(B) The Department of the Treasury.
(C) The Department of the Interior.
(D) The National Aeronautics and Space
Administration.
(E) The Department of Veterans Affairs.
(F) The National Institutes of Health.
(2) The term ‘‘governmentwide acquisition con-
tract’’, with respect to a covered non-defense agency,
means a task or delivery order contract that—
(A) is entered into by the non-defense agen-
cy; and
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(B) may be used as the contract under
which property or services are procured for one
or more other departments or agencies of the
Federal Government.
SEC. 847. INDEPENDENT MANAGEMENT REVIEWS OF CON-
TRACTS FOR SERVICES.
(a) GUIDANCE AND INSTRUCTIONS.—Not later than
120 days after the date of the enactment of this Act, the
Secretary of Defense shall issue guidance, with detailed im-
plementation instructions, for the Department of Defense to
provide for periodic independent management reviews of
contracts for services. The independent management review
procedures issued pursuant to this section shall be designed
to evaluate, at a minimum—
(1) contract performance in terms of cost, sched-
ule, and requirements;
(2) the use of contracting mechanisms, including
the use of competition, the contract structure and
type, the definition of contract requirements, cost or
pricing methods, the award and negotiation of task
orders, and management and oversight mechanisms;
(3) the contractor’s use, management, and over-
sight of subcontractors; and
(4) the staffing of contract management and
oversight functions.
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(b) ELEMENTS.—The guidance and instructions issued
pursuant to subsection (a) shall address, at a minimum—
(1) the contracts subject to independent manage-
ment reviews, including any applicable thresholds
and exceptions;
(2) the frequency with which independent man-
agement reviews shall be conducted;
(3) the composition of teams designated to per-
form independent management reviews;
(4) any phase-in requirements needed to ensure
that qualified staff are available to perform inde-
pendent management reviews;
(5) procedures for tracking the implementation
of recommendations made by independent manage-
ment review teams; and
(6) procedures for developing and disseminating
lessons learned from independent management re-
views.
(c) REPORTS.—
(1) REPORT ON GUIDANCE AND INSTRUCTION.—
Not later than 150 days after the date of the enact-
ment of this Act, the Secretary of Defense shall submit
to the congressional defense committees a report set-
ting forth the guidance and instructions issued pursu-
ant to subsection (a).
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(2) GAO REPORT
ON
IMPLEMENTATION.—Not
later than two years after the date of the enactment
of this Act, the Comptroller General of the United
States shall submit to the congressional defense com-
mittees a report on the implementation of the guid-
ance and instructions issued pursuant to subsection
(a).
SEC. 848. IMPLEMENTATION AND ENFORCEMENT OF RE-
QUIREMENTS 
APPLICABLE 
TO
UNDEFINITIZED CONTRACTUAL ACTIONS.
(a) GUIDANCE AND INSTRUCTIONS.—Not later than
120 days after the date of the enactment of this Act, the
Secretary of Defense shall issue guidance, with detailed im-
plementation instructions, for the Department of Defense to
ensure the implementation and enforcement of requirements
applicable to undefinitized contractual actions.
(b) ELEMENTS.—The guidance and instructions issued
pursuant to subsection (a) shall address, at a minimum—
(1) the circumstances in which it is, and is not,
appropriate for Department of Defense officials to use
undefinitized contractual actions;
(2) approval requirements (including thresholds)
for the use of undefinitized contractual actions;
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(3) procedures for ensuring that schedules for the
definitization of undefinitized contractual actions are
not exceeded;
(4) procedures for ensuring compliance with lim-
itations on the obligation of funds pursuant to
undefinitized contractual actions (including, where
feasible, the obligation of less than the maximum al-
lowed at time of award);
(5) procedures (including appropriate docu-
mentation requirements) for ensuring that reduced
risk is taken into account in negotiating profit or fee
with respect to costs incurred before the definitization
of an undefinitized contractual action; and
(6) reporting requirements for undefinitized con-
tractual actions that fail to meet required schedules or
limitations on the obligation of funds.
(c) REPORTS.—
(1) REPORT ON GUIDANCE AND INSTRUCTIONS.—
Not later than 150 days after the date of the enact-
ment of this Act, the Secretary of Defense shall submit
to the congressional defense committees a report set-
ting forth the guidance and instructions issued pursu-
ant to subsection (a).
(2) GAO REPORT.—Not later than two years
after the date of the enactment of this Act, the Comp-
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troller General of the United States shall submit to
the congressional defense committees a report on the
extent to which the guidance and instructions issued
pursuant to subsection (a) have resulted in improve-
ments to—
(A) the level of insight that senior Depart-
ment of Defense officials have into the use of
undefinitized contractual actions;
(B) the appropriate use of undefinitized
contractual actions;
(C) 
the 
timely 
definitization 
of
undefinitized contractual actions; and
(D) the negotiation of appropriate profits
and fees for undefinitized contractual actions.
Subtitle D—Department of Defense
Contractor Matters
SEC. 861. PROTECTION FOR CONTRACTOR EMPLOYEES
FROM REPRISAL FOR DISCLOSURE OF CER-
TAIN INFORMATION.
(a) INCREASED PROTECTION FROM REPRISAL.—Sub-
section (a) of section 2409 of title 10, United States Code,
is amended—
(1) by striking ‘‘disclosing to a Member of Con-
gress or an authorized official of an agency or the De-
partment of Justice’’ and inserting ‘‘disclosing to a
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Member of Congress, a representative of a committee
of Congress, an Inspector General, the Government
Accountability Office, a Department of Defense em-
ployee responsible for contract oversight or manage-
ment, or an authorized official of an agency or the
Department of Justice, including in the case of a dis-
closure made in the ordinary course of an employee’s
duties,’’; and
(2) by striking ‘‘information relating to a sub-
stantial violation of law related to a contract (includ-
ing the competition for or negotiation of a contract)’’
and inserting ‘‘information that the employee reason-
ably believes is evidence of gross mismanagement of a
Department of Defense contract, grant, or direct pay-
ment if the United States Government provides any
portion of the money or property which is requested
or demanded, a gross waste of Department of Defense
funds, a substantial and specific danger to public
health or safety, or a violation of law related to a De-
partment of Defense contract (including the competi-
tion for or negotiation of a contract), grant, or direct
payment if the United States Government provides
any portion of the money or property which is re-
quested or demanded’’.
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(b) ACCELERATION OF SCHEDULE FOR DENYING RE-
LIEF OR PROVIDING REMEDY.—Subsection (c) of such sec-
tion is amended—
(1) in paragraph (1)—
(A) by inserting after ‘‘(1)’’ the following:
‘‘Not later than 90 days after receiving an In-
spector General report pursuant to subsection
(b), the head of the agency concerned shall deter-
mine whether the contractor concerned has sub-
jected the complainant to a reprisal prohibited
under subsection (a).’’; and
(B) by adding at the end the following new
subparagraphs:
‘‘(D) In the event the disclosure relates to a cost-
plus contract, prohibit the contractor from receiving
one or more award fee payments to which the con-
tractor would otherwise be eligible until such time as
the contractor takes the actions ordered by the head
of the agency pursuant to subparagraphs (A) through
(C).
‘‘(E) Take the reprisal into consideration in any
past performance evaluation of the contractor for the
purpose of a contract award.’’;
(2) by redesignating paragraph (3) as para-
graph (4); and
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(3) by inserting after paragraph (2) the fol-
lowing new paragraph:
‘‘(3)(A) In the case of a contract covered by subsection
(f), an employee of a contractor who has been discharged,
demoted, or otherwise discriminated against as a reprisal
for a disclosure covered by subsection (a) or who is ag-
grieved by the determination made pursuant to paragraph
(1) or by an action that the agency head has taken or failed
to take pursuant to such determination may, after exhaust-
ing his or her administrative remedies, bring a de novo ac-
tion at law or equity against the contractor to seek compen-
satory damages and other relief available under this section
in the appropriate district court of the United States, which
shall have jurisdiction over such an action without regard
to the amount in controversy. Such an action shall, at the
request of either party to the action, be tried by the court
with a jury.
‘‘(B) An employee shall be deemed to have exhausted
his or her administrative remedies for the purpose of this
paragraph—
‘‘(i) 90 days after the receipt of a written deter-
mination under paragraph (1); or
‘‘(ii) 15 months after a complaint is submitted
under subsection (b), if a determination by an agency
head has not been made by that time and such delay
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is not shown to be due to the bad faith of the com-
plainant.’’.
(c) LEGAL BURDEN OF PROOF.—Such section is fur-
ther amended—
(1) by redesignating subsection (e) as subsection
(g); and
(2) by inserting after subsection (d) the following
new subsection:
‘‘(e) LEGAL BURDEN OF PROOF.—The legal burdens
of proof specified in section 1221(e) of title 5 shall be con-
trolling for the purposes of any investigation conducted by
an inspector general, decision by the head of an agency,
or hearing to determine whether discrimination prohibited
under this section has occurred.’’.
(d) REQUIREMENT TO NOTIFY EMPLOYEES OF RIGHTS
RELATED TO PROTECTION FROM REPRISAL.—Such section,
as amended by subsection (c), is further amended by insert-
ing after subsection (e) the following new subsection:
‘‘(f) NOTICE OF RIGHTS RELATED TO PROTECTION
FROM REPRISAL.—
‘‘(1) IN GENERAL.—Each Department of Defense
contract in excess of $5,000,000, other than a contract
for the purchase of commercial items, shall include a
clause requiring the contractor to ensure that all em-
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ployees of the contractor who are working on Depart-
ment of Defense contracts are notified of—
‘‘(A) their rights under this section;
‘‘(B) the fact that the restrictions imposed
by any employee contract, employee agreement,
or non-disclosure agreement may not supersede,
conflict with, or otherwise alter the employee
rights provided for under this section; and
‘‘(C) the telephone number for the whistle-
blower hotline of the Inspector General of the De-
partment of Defense.
‘‘(2) FORM OF NOTICE.—The notice required by
paragraph (1) shall be made by posting the required
information at a prominent place in each workplace
where employees working on the contract regularly
work.’’.
(e) DEFINITIONS.—Subsection (g) of such section, as
redesignated by subsection (c)(1), is amended—
(1) in paragraph (4), by inserting after ‘‘an
agency’’ the following: ‘‘and includes any person re-
ceiving funds covered by the prohibition against re-
prisals in subsection (a)’’;
(2) in paragraph (5), by inserting after ‘‘1978’’
the following: ‘‘and any Inspector General that re-
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ceives funding from or is under the jurisdiction of the
Secretary of Defense’’; and
(3) by adding at the end the following new para-
graphs:
‘‘(6) The term ‘employee’ means an individual
(as defined by section 2105 of title 5) or any indi-
vidual or organization performing services for a con-
tractor, grantee, or other recipient if the United
States Government provides any portion of the money
or property which is requested or demanded (includ-
ing as an employee of an organization).
‘‘(7) The term ‘Department of Defense funds’ in-
cludes funds controlled by the Department of Defense
and funds for which the Department of Defense may
be reasonably regarded as responsible to a third
party.’’.
SEC. 862. REQUIREMENTS FOR DEFENSE CONTRACTORS RE-
LATING TO CERTAIN FORMER DEPARTMENT
OF DEFENSE OFFICIALS.
(a) REQUIREMENTS.—
(1) IN
GENERAL.—Chapter 141 of title 10,
United States Code, as amended by section 826 of this
Act, is further amended by adding at the end the fol-
lowing new section:
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‘‘§ 2410r. 
Defense 
contractors: 
requirements 
con-
cerning former Department of Defense of-
ficials
‘‘(a) IN GENERAL.—Each contract for the procurement
of goods or services in excess of $10,000,000, other than a
contract for the procurement of commercial items, that is
entered into by the Department of Defense shall include a
provision under which the contractor agrees to submit to
the Secretary of Defense, not later than April 1 of each year
such contract is in effect, a written report setting forth the
information required by subsection (b).
‘‘(b) REPORT INFORMATION.—Except as provided in
subsection (c), a report by a contractor under subsection
(a) shall—
‘‘(1) list the name of each person who—
‘‘(A) is a former officer or employee of the
Department of Defense or a former or retired
member of the armed forces who served—
‘‘(i) in an Executive Schedule position
under subchapter II of chapter 53 of title 5;
‘‘(ii) in a position in the Senior Exec-
utive Service under subchapter VIII of
chapter 53 of title 5;
‘‘(iii) in a general or flag officer posi-
tion compensated at a rate of pay for grade