Preventing Personal Conflicts of Interest in Federal Acquisition Act
Bill: H.R.8325 | Sponsor: Rep. Maloney, Carolyn B. (D-NY)
Policy area: Government Operations and Politics

Summary:
Preventing Personal Conflicts of Interest in Federal Acquisition Act
This bill addresses conflicts of interest in federal acquisition.
Specifically, the bill directs the Federal Acquisition Regulatory Council to (1) expand the scope of rules to prevent personal conflicts of interest beyond the limited types of functions or services that are currently addressed in a specified part of the Federal Acquisition Regulation (FAR), and (2) revise the FAR to address the functions and services that give rise to heightened concerns for personal conflicts of interest.
The bill similarly expands the scope of the Office of Federal Procurement Policy's standard policy to prevent personal conflicts of interest by contractor employees performing relevant acquisition functions for or on behalf of a federal agency or department.
The bill prohibits contractors, contractor employees, and subcontractors and their employees from providing services supporting the regulatory, policymaking, or adjudicative functions of an agency at the same time that the contractor, employees, or subcontractor provides services to an entity regulated by, or having non-routine business before, the agency, except where there is a compelling reason, as documented in writing.
The Department of Justice may bring a civil action in U.S. district court for violations of this bill.

To amend title 41, United States Code, to prevent personal conflicts of 
        interest in Federal acquisition, and for other purposes.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Preventing Personal Conflicts of 
Interest in Federal Acquisition Act''.

SEC. 2. PREVENTING PERSONAL CONFLICTS OF INTEREST IN FEDERAL 
              ACQUISITION.

    (a) Federal Acquisition Regulation Revisions.--Not later than 12 
months after the date of the enactment of this Act, the Federal 
Acquisition Regulatory Council shall--
            (1) expand the scope of rules to prevent personal conflicts 
        of interest beyond the limited types of functions or services 
        that are currently addressed in subpart 3.11 of the Federal 
        Acquisition Regulation, by including coverage for--
                    (A) consulting, analytical, or advisory services 
                supporting the primary missions, or services supporting 
                the regulatory, policymaking, and adjudicative 
                functions, of an Executive agency;
                    (B) functions closely associated with inherently 
                governmental functions, as defined in the Federal 
                Acquisition Regulation, that give rise to heightened 
                concerns for personal conflicts of interest; and
                    (C) other functions or services that give rise to 
                heightened concerns for personal conflicts of interest, 
                as deemed appropriate; and
            (2) revise the Federal Acquisition Regulation to address 
        the functions and services identified under paragraph (1), 
        including by providing and updating--
                    (A) the definitions, policies, and procedures 
                related to preventing potential personal conflicts of 
                interest;
                    (B) solicitation provisions and contract clauses 
                for Executive agencies to use in solicitations and 
                contracts, where appropriate, to prevent personal 
                conflicts of interest;
                    (C) the responsibilities of employers to screen 
                their employees for personal conflicts of interest, to 
                inform their employees of their legal duties related to 
                preventing personal conflicts of interest and the 
                appearance of personal conflicts of interest, and to 
                seek compliance from their employees of such procedures 
                and requirements;
                    (D) the restrictions on a contractor's employees 
                disclosing, or using for personal gain, confidential 
                information obtained in connection with performing the 
                contract; and
                    (E) the duties and procedures of reporting apparent 
                violations of rules governing personal conflicts of 
                interest, including to the agency's Inspector General, 
                where appropriate.

SEC. 3. ETHICS SAFEGUARDS RELATED TO CONTRACTOR CONFLICTS OF INTEREST.

    Section 2303 of title 41, United States Code, is amended to read as 
follows:
``Sec. 2303. Ethics safeguards related to contractor conflicts of 
              interest
    ``(a) Policy on Personal Conflicts of Interest by Contractor 
Employees.--
            ``(1) Development and issuance of policy.--The 
        Administrator shall develop and issue a standard policy to 
        prevent personal conflicts of interest by contractor employees 
        performing the following functions for or on behalf of an 
        Executive agency or department:
                    ``(A) Relevant acquisition functions (including the 
                development, award, and administration of Federal 
                Government contracts).
                    ``(B) Consulting, analytical, and advisory services 
                supporting the primary missions, or services supporting 
                the regulatory, policymaking, and adjudicative 
                functions, of an Executive agency.
                    ``(C) Other functions or services provided by 
                contractors that present heightened risks of personal 
                conflicts of interest, as determined by the 
                Administrator.
            ``(2) Elements of policy.--The policy shall--
                    ``(A) define `personal conflict of interest' as it 
                relates to contractor employees performing covered 
                functions; and
                    ``(B) require each contractor whose employees 
                perform relevant acquisition functions to--
                            ``(i) identify and prevent personal 
                        conflicts of interest for the employees;
                            ``(ii) prohibit contractor employees who 
                        have access to non-public government 
                        information obtained while performing covered 
                        functions from using the information for 
                        personal gain;
                            ``(iii) report any personal conflict-of-
                        interest violation by an employee to the 
                        applicable contracting officer or contracting 
                        officer's representative as soon as it is 
                        identified;
                            ``(iv) maintain effective oversight to 
                        verify compliance with personal conflict-of-
                        interest safeguards;
                            ``(v) have procedures in place to screen 
                        for potential conflicts of interest for all 
                        employees performing covered functions; and
                            ``(vi) take appropriate disciplinary action 
                        in the case of employees who fail to comply 
                        with policies established pursuant to this 
                        section.
            ``(3) Contract clause.--
                    ``(A) Contents.--The Administrator shall develop a 
                personal conflicts-of-interest clause or a set of 
                clauses for inclusion in solicitations and contracts 
                (and task or delivery orders) for the performance of 
                covered functions that sets forth--
                            ``(i) the personal conflicts-of-interest 
                        policy developed under this subsection; and
                            ``(ii) the contractor's responsibilities 
                        under the policy.
                    ``(B) Effective date.--Updates to the clause or 
                clauses identified in subparagraph (A) shall take 
                effect one year after enactment, and shall apply to--
                            ``(i) contracts entered into on or after 
                        that effective date; and
                            ``(ii) task or delivery orders awarded on 
                        or after that effective date, regardless of 
                        whether the contracts pursuant to which the 
                        task or delivery orders are awarded are entered 
                        before, on, or after the effective date.
            ``(4) Partial applicability.-- If only a portion of a 
        contract is for the performance of covered functions, then this 
        subsection applies only to that portion of the contract.
    ``(b) Best Practices.--The Administrator shall, in consultation 
with the Director of the Office of Government Ethics, develop and 
maintain a repository of best practices relating to the prevention and 
mitigation of organizational and personal conflicts of interest in 
Federal contracting.
    ``(c) Definitions.--In this section:
            ``(1) Covered function.--The term `covered function' means 
        a function described under subsection (a)(1).
            ``(2) Relevant acquisition function.--The term `relevant 
        acquisition function' means an acquisition function closely 
        associated with inherently governmental functions.''.

SEC. 4. PROHIBITION AGAINST CERTAIN CONFLICTS OF INTEREST.

    Chapter 23 of title 41, United States Code, is amended by adding at 
the end the following:
``Sec. 2314. Prohibition against certain conflicts of interest
    ``(a) Prohibition Against Certain Conflicts of Interest.--
            ``(1) Prohibition.--Contractors, contractor employees, and 
        subcontractors and their employees shall not provide services 
        supporting the regulatory, policymaking, or adjudicative 
        functions of an Executive agency at the same time that the 
        contractor, employees, or subcontractor provides services to an 
        entity regulated by, or having non-routine business before, the 
        agency.
            ``(2) Exception.--
                    ``(A) In general.--The head of the executive agency 
                may issue an exception to the requirement under 
                paragraph (1) with respect to a contractor, employee, 
                or subcontractor only if the head of the agency 
                determines in writing there is a compelling reason to 
                award a contract, or continue performance of a 
                contract, with such exception.
                    ``(B) Determination.--In determining whether there 
                is a compelling reason under subparagraph (A), the head 
                of an Executive agency shall consider--
                            ``(i) the nature and extent of the risks 
                        associated with the conflict;
                            ``(ii) the essential need of the government 
                        to receive the services, notwithstanding such a 
                        conflict, and direct harm to the government of 
                        not receiving the services from the entity or 
                        person; and
                            ``(iii) the ability of the contractor, 
                        employee, or subcontractor to mitigate the 
                        conflict.
                    ``(C) Non-delegation of authority.--The head of the 
                Executive agency shall not delegate the authority to 
                issue an exception under this subparagraph below the 
                level of the head of a contracting activity.
            ``(3) Public notice of issue of exception.--
                    ``(A) Public availability.--A notice of an 
                exception issued pursuant to paragraph (2) shall be 
                made publicly available in electronic format through 
                the Government-wide point of entry, as defined in the 
                Federal Acquisition Regulation, at the time of contract 
                award, or at the time that an Executive agency decides 
                to proceed with contract performance, if arising after 
                award.
                    ``(B) Contents of notification.--The notice shall 
                include, at a minimum--
                            ``(i) the contractor, employee, or 
                        subcontractor receiving the exception, although 
                        reasonable redactions should be made to the 
                        public version of the notice to protect the 
                        privacy of individual employees of a contractor 
                        or subcontractor;
                            ``(ii) identification of the contract;
                            ``(iii) a description of the nature of the 
                        conflict;
                            ``(iv) the rationale for applying the 
                        exception; and
                            ``(v) the measures that will be taken to 
                        mitigate or avoid the conflict.
    ``(b) Disclosures and Limitations for Consultants.--Contractors 
providing consulting, analytical, or advisory services in support of 
the primary missions, or the regulatory, policymaking, or adjudicative 
functions, of an Executive agency shall--
            ``(1) disclose, in sufficient detail, specific work 
        performed in the last five years on behalf of any entities 
        regulated by, or having non-routine business before, the 
        Executive agency; and
            ``(2) during the term of the contract, refrain from 
        entering into consulting or other contractual arrangements with 
        any entity to perform specific work that may reasonably create 
        a conflict of interest, without receiving the written approval 
        of the contracting officer before the execution of the 
        contractual arrangement.
    ``(c) Civil Penalties.--
            ``(1) Civil action.--The Attorney General may bring a civil 
        action in an appropriate district court of the United States 
        against a person who knowingly violates the prohibitions under 
        subsection (a) or fails to comply with the requirements of 
        subsection (b).
            ``(2) Penalty.--On proof of that conduct by a preponderance 
        of the evidence--
                    ``(A) an individual shall be liable to the Federal 
                Government for a civil penalty of not more than $50,000 
                for each violation plus the amount of compensation that 
                the individual received under the corresponding 
                Government contract; and
                    ``(B) an organization shall be liable to the 
                Federal Government for a civil penalty of not more than 
                $500,000 for each violation plus the amount of 
                compensation that the organization received under the 
                corresponding Government contract.
            ``(3) Statute of limitation.--A civil action under 
        paragraph (1) shall be brought within 6 years after the later 
        of the date on which--
                    ``(A) the prohibited conduct establishing the cause 
                of action occurred; or
                    ``(B) the Federal Government first knew or should 
                reasonably have known that the prohibited conduct had 
                occurred.
            ``(4) Rules of construction.--The civil penalties set forth 
        in this subsection are not exclusive and do not limit the 
        potential for a person that violates the prohibitions under 
        subsection (a) or fails to comply with the requirements of 
        subsection (b), to be found liable under the False Claims Act, 
        section 3729 through section 3733 of title 31, or other 
        applicable civil or criminal penalties, as prescribed by law.
    ``(d) Administrative Actions.--
            ``(1) Types of action that an executive agency may take.--
        An Executive agency that receives information that a contractor 
        or a person has failed to comply with a legal requirement to 
        disclose an organizational conflict of interest or a personal 
        conflict of interest, as defined in the Federal Acquisition 
        Regulation, or has violated the prohibitions under subsection 
        (a) or fails to comply with the requirements of subsection (b), 
        shall consider taking one or more of the following actions, as 
        appropriate:
                    ``(A) Canceling the Executive agency procurement or 
                disqualify a contractor from consideration, if a 
                contract has not yet been awarded.
                    ``(B) Terminating a contract with respect to 
                which--
                            ``(i) the contractor or someone acting for 
                        the contractor has been held liable for an 
                        offense punishable under subsection (a); or
                            ``(ii) the contracting officer determines 
                        that a person or contractor failed to disclose 
                        a material organizational or personal conflict 
                        of interest.
                    ``(C) Initiating a suspension or debarment 
                proceeding for the protection of the Federal Government 
                in accordance with procedures in the Federal 
                Acquisition Regulation.
            ``(2) Amount government entitled to recover.--When a 
        Federal agency terminates a contract pursuant to paragraph 
        (1)(B), the Federal Government is entitled to recover, in 
        addition to any penalty prescribed by law, the amount expended 
        under the contract.
            ``(3) Present responsibility affected by conduct.--For 
        purposes of a suspension or debarment proceeding initiated 
        pursuant to paragraph (1)(C), engaging in conduct constituting 
        an offense under this section affects the present 
        responsibility of a Federal Government contractor or 
        subcontractor.''.
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