Time to Choose Act of 2024

Bill: 118-s-3810
Sponsor: full_name: Sen. Hawley, Josh [R-MO]
Introduced: 2024-02-27
Policy area: Government Operations and Politics
Subjects: Asia

China

Public contracts and procurement
Latest action: action_date: 2024-12-19
text: Placed on Senate Legislative Calendar under General Orders. Calendar No. 734.

Summaries:

tv_txt: II Calendar No. 734 118th CONGRESS 2d Session S. 3810 [Report No. 118–314] IN THE SENATE OF THE UNITED STATES February 27, 2024 Mr. Hawley (for himself, Mr. Scott of Florida , Mr. Rubio , and Mr. Peters ) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs December 19 (legislative day, December 16), 2024 Reported by Mr. Peters , with an amendment and an amendment to the title Strike out all after the enacting clause and insert the part printed in italic A BILL To prohibit conflict of interests among consulting firms that simultaneously contract with the Government of the People’s Republic of China and the United States Government, and for other purposes.

1. Short title This Act may be cited as the Time to Choose Act of 2024 . 2. Findings Congress makes the following findings: (1) The Department of Defense and other agencies in the United States Government regularly award contracts to firms such as Deloitte, McKinsey & Company, and others who are simultaneously providing consulting services to the Government of the People’s Republic of China and proxies or affiliates thereof. (2) The provision of such consulting services by firms like Deloitte, McKinsey & Company, and others to entities in the People’s Republic of China directly supports efforts by that nation’s government to generate economic and military power that it can then use to undermine the economic and national security of the American people, including through economic coercion and by threatening or using military force against us. (3) It is a conflict of interest for firms like Deloitte, McKinsey & Company, and others to simultaneously aid in the efforts of the Government of the People's Republic of China to undermine the economic and national security of the United States while they are simultaneously contracting with the Department of Defense and other United States Government agencies responsible for defending the United States from foreign threats, above all from China. (4) Firms like Deloitte, McKinsey & Company, and others should no longer be allowed to engage in such a conflict of interest and should instead be required to choose between aiding the efforts of the Government of the People's Republic of China to harm the United States or helping the United States Government to defend its citizens against such foreign coercion. 3. Prohibition on Federal contracting with entities that are simultaneously aiding in the efforts of the People’s Republic of China to harm the United States In order to end conflict of interests in Federal contracting among consulting firms that simultaneously contract with the United States Government and covered foreign entities, the Federal Acquisition Regulatory Council shall, not later than 180 days after the date of the enactment of this Act, amend the Federal Acquisition Regulation— (1) to require any entity that provides the services described in the North American Industry Classification System’s Industry Group code 5416, prior to entering into a Federal contract, to certify that neither it nor any of its subsidiaries or affiliates hold a contract with one or more covered foreign entities; and (2) to prohibit Federal contracts from being awarded to an entity that provides the services described under the North American Industry Classification System’s Industry Group code 5416 if the entity or any of its subsidiaries or affiliates are determined, based on the self-certification required under paragraph (1) or other information, to be a contractor of, or otherwise providing services to, a covered foreign entity. 4. Penalties for false information on contracting with the People’s Republic of China (a) Termination, suspension, and debarment If the head of an executive agency determines that a consulting firm described in section 3 has knowingly submitted a false certification or information on or after the date on which the Federal Acquisition Regulatory Council amends the Federal Acquisition Regulation pursuant to such section, the head of the executive agency shall terminate the contract with the consulting firm and consider suspending or debarring the firm from eligibility for future Federal contracts in accordance with subpart 9.4 of the Federal Acquisition Regulation. (b) False Claims Act A consulting firm described in section 3 that, for the purposes of the False Claims Act, intentionally hides or misrepresents one or more contracts with covered foreign entities shall be subject to the penalties and corrective actions described in the False Claims Act, including liability for three times the amount of damages which the United States Government sustains, including funds or other resources expended on or in support of the solicitation, selection, and performance of such contracts. 5. Definitions In this Act: (1) Covered foreign entity The term covered foreign entity means— (A) a person, business trust, business association, company, institution, government agency, university, partnership, limited liability company, corporation, or any other individual or organization that can legally enter into contracts, own properties, or pay taxes on behalf of, the Government of the People’s Republic of China; (B) the Chinese Communist Party; (C) the People’s Republic of China’s United Front; (D) an entity owned or controlled by, or that performs activities on behalf of, a person or entity described in subparagraph (A), (B), or (C); and (E) an individual that is a member of the board of directors, an executive officer, or a senior official of an entity described in subparagraph (A), (B), (C), or (D). (2) Executive agency The term executive agency has the meaning given the term in section 133 of title 41, United States Code. (3) False Claims Act The term False Claims Act means sections 3729 through 3733 of title 31, United States Code. (4) North American Industry Classification System's Industry Group code 5416 The term North American Industry Classification System’s Industry Group code 5416 refers to the North American Industry Classification System category that covers Management, Scientific, and Technical Consulting Services as Industry Group code 5416, including industry codes 54151, 541611, 541612, 541613, 541614, 541618, 54162, 541620, 54169, 541690.

1. Short title This Act may be cited as the Time to Choose Act of 2024 . 2. Findings Congress makes the following findings: (1) The Department of Defense and other agencies in the United States Government regularly award contracts to firms that are simultaneously providing consulting services to foreign governments and proxies or affiliates thereof. (2) The provision of such consulting services to covered foreign entities may support efforts by certain foreign governments to generate economic and military power that they can then use to undermine the economic and national security of the American people. (3) It is a conflict of interest for consulting firms to simultaneously aid in the efforts of certain foreign governments to undermine the economic and national security of the United States while they are simultaneously contracting with Federal agencies responsible for protecting and defending the United States from foreign threats. (4) Firms should be prevented from engaging in such a conflict of interest and should instead be required to choose between aiding the efforts of certain foreign governments or helping the United States Government to support and defend its citizens. 3. Prohibition on Federal contracting with entities that are simultaneously aiding in the efforts of covered foreign entities (a) In general In order to end conflicts of interest in Federal contracting among consulting firms that simultaneously contract with the United States Government and covered foreign entities, the Federal Acquisition Regulatory Council shall, not later than 1 year after the date of the enactment of this Act, amend the Federal Acquisition Regulation— (1) to require any entity that makes an offer or quotation to provide consulting services to an executive agency, including services described in the North American Industry Classification System's Industry Group code 5416, prior to entering into a Federal contract, to certify that neither it nor any of its subsidiaries or affiliates hold a consulting contract with one or more covered foreign entities; and (2) to prohibit Federal contracts for consulting services from being awarded to an entity that provides consulting services, including services described under the North American Industry Classification System's Industry Group code 5416 if the entity or any of its subsidiaries or affiliates are determined, based on the self-certification required under paragraph (1), to be a contractor of, or are otherwise providing consulting services to, a covered foreign entity. (b) Waiver (1) In general Subject to the limitations in paragraph (2), the head of an executive agency may waive the conflict of interest restrictions under this section on a case-by-case basis if— (A) the agency head, in consultation with the Secretary of Defense and the Director of National Intelligence, determines the waiver to be in the national security interests of the United States; (B) the agency head determines that no other entity without a conflict of interest under this section can perform the work for the Federal contract; (C) the head of the executive agency submits to the Director of the Office of Management and Budget a notification of such waiver at least 5 days prior to issuing the waiver; (D) the head of the executive agency submits to the appropriate congressional committees a notification of such waiver within 30 days in unclassified form (accompanied by a classified annex if necessary) and offers a briefing to those committees on the information included in the notification; and (E) the contracting agency publishes in an easily accessible location on the agency’s public website a list of the names of the covered foreign entities to which the entity receiving a waiver provides consulting services, unless the head of the applicable executive agency, with the approval of the Director of the Office of Management and Budget, and in consultation with the Secretary of Defense and Director of National Intelligence, determines that such public disclosure would directly harm the national security interests of the United States. (2) Limitations (A) Duration A waiver granted under paragraph (1) shall last for a period of not more than 365 days. The head of the applicable executive agency, with the approval of the Director of the Office of Management and Budget, and in consultation with the Secretary of Defense and Director of National Intelligence, may extend a waiver granted under such paragraph one time, for a period up to 180 days after the date on which the waiver would otherwise expire, if such an extension is in the national security interests of the United States and the Director submits to the appropriate congressional committees a notification of such waiver and offers a briefing to those committees on the information included in the notification. (B) Number Not more than one total waiver across all executive agencies may be granted under paragraph (1) to a single entity at a given time. (C) Notification requirements The notification required under subparagraphs (C) and (D) of paragraph (1) shall include the following information: (i) Information on the contractor, including— (I) the name, address, and corporate structure of the contractor; (II) the name, address, and corporate structure of any subsidiaries or subcontractors involved; (III) all foreign ownership of the contractor; (IV) all foreign real estate owned by the contractor; and (V) an employee designated as responsible for managing any conflict of interests that may arise as part of the contract. (ii) Information on the covered foreign entities involved to the extent known by the contractor, including— (I) the name and address of the covered foreign entity; (II) the name and address of any subsidiaries or subcontractors involved; (III) a complete history of any contracts between the covered foreign entity and the contractor; (IV) all ownership of the covered foreign entity; and (V) any legal authorities providing a foreign government with access or control over the covered foreign entity. (iii) Information on the nature of the work performed for the covered foreign entities, including— (I) the projected and actual dollar value of the contract; (II) the projected and actual duration of the contract; (III) the projected and actual number of employees to work on the contract; (IV) the projected and actual number of employees who are United States citizens who work on the contract; (V) the projected and actual number of employees who currently or formerly held security clearances with the United States Government who work on the contract; (VI) the subject matter of the contract; (VII) any materials provided to the covered foreign entity in order to secure the contract; (VIII) any tracking number used by the covered foreign entity to identify the contract; (IX) any tracking number or information used by the contractor to identify the contract; and (X) any military or intelligence applications that could benefit from the contract. (iv) Justification of the executive agency’s need for providing the waiver. (v) An acceptable management oversight plan to ensure that the work performed for the covered foreign entities does not compromise the work being performed for the Federal Government or harm the national security of the United States, to be approved at not lower than the Deputy Secretary level at the contracting agency. (3) Contractor reporting The executive agency granting a waiver under this subsection shall require the contractor, in the event the contractor identifies any of the following during the performance of the contract, to report the following information to the executive agency: (A) Any human rights violations that are known to the contractor through information provided to the contractor in the course of the contract. (B) Any religious liberty violations that are known to the contractor through information provided to the contractor in the course of the contract. (C) Any risks to United States economic or national security identified by the contractor in the course of the contract. 4. Penalties for false information (a) Termination, suspension, and debarment If the head of an executive agency determines that a consulting firm described in section 3(a)(1) has knowingly submitted a false certification or information on or after the date on which the Federal Acquisition Regulatory Council amends the Federal Acquisition Regulation pursuant to such section, the head of the executive agency shall terminate the contract with the consulting firm and consider suspending or debarring the firm from eligibility for future Federal contracts in accordance with subpart 9.4 of the Federal Acquisition Regulation. (b) False Claims Act A consulting firm described in section 3(a)(1) that, for the purposes of the False Claims Act, knowingly hides or misrepresents one or more contracts with covered foreign entities, or otherwise violates the False Claims Act, shall be subject to the penalties and corrective actions described in the False Claims Act, including liability for three times the amount of damages which the United States Government sustains. 5. Definitions In this Act: (1) Appropriate congressional committees The term appropriate congressional committees means the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Accountability of the House of Representatives. (2) Consulting services The term consulting services means advisory or assistance services similar to those defined in Federal Acquisition Regulation 2.101, but for the purposes of this Act includes services provided to covered foreign entities, except that the term does not include the provision of products or services related to— (A) compliance with legal, audit, accounting, tax, reporting, or other requirements of the laws and standards of countries; or (B) participation in a judicial, legal, or equitable dispute resolution proceeding. (3) Covered foreign entity The term covered foreign entity means any of the following: (A) The Government of the People’s Republic of China, the Chinese Communist Party, the People’s Liberation Army, the Ministry of State Security, or other security service or intelligence agency of the People’s Republic of China. (B) The Government of the Russian Federation or any entity sanctioned by the Secretary of the Treasury under Executive Order 13662 titled Blocking Property of Additional Persons Contributing to the Situation in Ukraine (79 Fed. Reg. 16169). (C) The government of any country if the Secretary of State determines that such government has repeatedly provided support for acts of international terrorism pursuant to any of the following: (i) Section 1754(c)(1)(A) of the Export Control Reform Act of 2018 ( 50 U.S.C. 4318(c)(1)(A) ). (ii) Section 620A of the Foreign Assistance Act of 1961 ( 22 U.S.C. 2371 ). (iii) Section 40 of the Arms Export Control Act ( 22 U.S.C. 2780 ). (iv) Any other provision of law. (D) Any entity included on any of the following lists maintained by the Department of Commerce: (i) The Entity List set forth in Supplement No. 4 to part 744 of the Export Administration Regulations. (ii) The Denied Persons List as described in section 764.3(a)(2) of the Export Administration Regulations. (iii) The Unverified List set forth in Supplement No. 6 to part 744 of the Export Administration Regulations. (iv) The Military End User List set forth in Supplement No. 7 to part 744 of the Export Administration Regulations. (E) Any entity identified by the Secretary of Defense pursuant to section 1237(b) of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 ( Public Law 105–261 ; 50 U.S.C. 1701 note). (F) Any entity on the Non-SDN Chinese Military-Industrial Complex Companies List (NS-CMIC List) maintained by the Office of Foreign Assets Control of the Department of the Treasury under Executive Order 14032 (86 Fed. Reg. 30145; relating to addressing the threat from securities investments that finance certain companies of the People’s Republic of China), or any successor order. (4) Executive agency The term executive agency has the meaning given the term in section 133 of title 41, United States Code. (5) False Claims Act The term False Claims Act means sections 3729 through 3733 of title 31, United States Code. (6) North American Industry Classification System's Industry Group code 5416 The term North American Industry Classification System's Industry Group code 5416 refers to the North American Industry Classification System category that covers Management, Scientific, and Technical Consulting Services as Industry Group code 5416, including industry codes 54151, 541611, 541612, 541613, 541614, 541618, 54162, 541620, 54169, and 541690. 6. No additional funding No additional funds are authorized to be appropriated for the purpose of carrying out this Act.

Amend the title so as to read: A bill to prohibit conflicts of interest among consulting firms that simultaneously contract with covered foreign entities and the United States Government, and for other purposes. .

December 19 (legislative day, December 16), 2024 Reported with an amendment and an amendment to the title

tv_txt: II 118th CONGRESS 2d Session S. 3810 IN THE SENATE OF THE UNITED STATES February 27, 2024 Mr. Hawley introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs A BILL To prohibit conflict of interests among consulting firms that simultaneously contract with the Government of the People’s Republic of China and the United States Government, and for other purposes.

1. Short title This Act may be cited as the Time to Choose Act of 2024 . 2. Findings Congress makes the following findings: (1) The Department of Defense and other agencies in the United States Government regularly award contracts to firms such as Deloitte, McKinsey & Company, and others who are simultaneously providing consulting services to the Government of the People’s Republic of China and proxies or affiliates thereof. (2) The provision of such consulting services by firms like Deloitte, McKinsey & Company, and others to entities in the People’s Republic of China directly supports efforts by that nation’s government to generate economic and military power that it can then use to undermine the economic and national security of the American people, including through economic coercion and by threatening or using military force against us. (3) It is a conflict of interest for firms like Deloitte, McKinsey & Company, and others to simultaneously aid in the efforts of the Government of the People's Republic of China to undermine the economic and national security of the United States while they are simultaneously contracting with the Department of Defense and other United States Government agencies responsible for defending the United States from foreign threats, above all from China. (4) Firms like Deloitte, McKinsey & Company, and others should no longer be allowed to engage in such a conflict of interest and should instead be required to choose between aiding the efforts of the Government of the People's Republic of China to harm the United States or helping the United States Government to defend its citizens against such foreign coercion. 3. Prohibition on Federal contracting with entities that are simultaneously aiding in the efforts of the People’s Republic of China to harm the United States In order to end conflict of interests in Federal contracting among consulting firms that simultaneously contract with the United States Government and covered foreign entities, the Federal Acquisition Regulatory Council shall, not later than 180 days after the date of the enactment of this Act, amend the Federal Acquisition Regulation— (1) to require any entity that provides the services described in the North American Industry Classification System’s Industry Group code 5416, prior to entering into a Federal contract, to certify that neither it nor any of its subsidiaries or affiliates hold a contract with one or more covered foreign entities; and (2) to prohibit Federal contracts from being awarded to an entity that provides the services described under the North American Industry Classification System’s Industry Group code 5416 if the entity or any of its subsidiaries or affiliates are determined, based on the self-certification required under paragraph (1) or other information, to be a contractor of, or otherwise providing services to, a covered foreign entity. 4. Penalties for false information on contracting with the People’s Republic of China (a) Termination, suspension, and debarment If the head of an executive agency determines that a consulting firm described in section 3 has knowingly submitted a false certification or information on or after the date on which the Federal Acquisition Regulatory Council amends the Federal Acquisition Regulation pursuant to such section, the head of the executive agency shall terminate the contract with the consulting firm and consider suspending or debarring the firm from eligibility for future Federal contracts in accordance with subpart 9.4 of the Federal Acquisition Regulation. (b) False Claims Act A consulting firm described in section 3 that, for the purposes of the False Claims Act, intentionally hides or misrepresents one or more contracts with covered foreign entities shall be subject to the penalties and corrective actions described in the False Claims Act, including liability for three times the amount of damages which the United States Government sustains, including funds or other resources expended on or in support of the solicitation, selection, and performance of such contracts. 5. Definitions In this Act: (1) Covered foreign entity The term covered foreign entity means— (A) a person, business trust, business association, company, institution, government agency, university, partnership, limited liability company, corporation, or any other individual or organization that can legally enter into contracts, own properties, or pay taxes on behalf of, the Government of the People’s Republic of China; (B) the Chinese Communist Party; (C) the People’s Republic of China’s United Front; (D) an entity owned or controlled by, or that performs activities on behalf of, a person or entity described in subparagraph (A), (B), or (C); and (E) an individual that is a member of the board of directors, an executive officer, or a senior official of an entity described in subparagraph (A), (B), (C), or (D). (2) Executive agency The term executive agency has the meaning given the term in section 133 of title 41, United States Code. (3) False Claims Act The term False Claims Act means sections 3729 through 3733 of title 31, United States Code. (4) North American Industry Classification System's Industry Group code 5416 The term North American Industry Classification System’s Industry Group code 5416 refers to the North American Industry Classification System category that covers Management, Scientific, and Technical Consulting Services as Industry Group code 5416, including industry codes 54151, 541611, 541612, 541613, 541614, 541618, 54162, 541620, 54169, 541690.