Department of Defense Ethics and Anti-Corruption Act of 2023

Bill: 118-s-2050
Sponsor: full_name: Sen. Warren, Elizabeth [D-MA]
Introduced: 2023-06-20
Policy area: Armed Forces and National Security
Latest action: action_date: 2023-06-20
text: Read twice and referred to the Committee on Armed Services.

Summaries:

tv_txt: II 118th CONGRESS 1st Session S. 2050 IN THE SENATE OF THE UNITED STATES June 20, 2023 Ms. Warren introduced the following bill; which was read twice and referred to the Committee on Armed Services A BILL To promote ethics and prevent corruption in Department of Defense contracting and other activities, and for other purposes.

1. Short title; table of contents (a) Short title This Act may be cited as the Department of Defense Ethics and Anti-Corruption Act of 2023 . (b) Table of contents The table of contents for this Act is as follows: Sec. 1. Short title; table of contents. TITLE I—Revolving door and contractor influence Sec. 101. Heightened revolving door requirements. Sec. 102. Requirements for defense contractors relating to certain former Department of Defense officials and lobbying activities. Sec. 103. Ban on hiring contracting officials enforceable on certain contracts. Sec. 104. Ban on hiring senior officials by giant defense contractors. Sec. 105. Modification of prohibition on lobbying activities with respect to the Department of Defense by certain officers of the Armed Forces and civilian employees of the Department of Defense following separation from military service or employment with the department. Sec. 106. Enhancement of recusal for conflicts of personal interest requirements for Department of Defense officers and employees. Sec. 107. Prohibition on ownership or trading of stocks in certain companies by Department of Defense officers and employees. TITLE II—Limiting foreign influence Sec. 201. Ban on senior national security officials advising foreign governments. Sec. 202. Ban on former military and civilian intelligence officers from foreign employment. TITLE III—Transparency Sec. 301. Affirmative contractor record disclosures. Sec. 302. Publication of contractor evaluation ratings. Sec. 303. Ownership of information. Sec. 304. Financial disclosure by large contractors. Sec. 305. Availability on the internet of certain information about officers serving in general or flag officer grades. I Revolving door and contractor influence 101. Heightened revolving door requirements Section 847 of the National Defense Authorization Act for Fiscal Year 2008 ( Public Law 110–181 ; 10 U.S.C. 1701 note) is amended— (1) in subsection (a)(1), by striking within two years of leaving service and inserting within four years of leaving service ; and (2) in subsection (b)— (A) by striking requirement .—Each request and inserting the following: “ requirement .— (1) Database Each request ; (B) by striking retained by the Department of Defense in a central database or repository maintained by the General Counsel of the Department for not less than five years and inserting retained by the Department of Defense in a central database or repository maintained by the Standards of Conduct Office of the Department for not less than 10 years ; (C) by inserting and shall be posted on a publicly available internet website of the General Counsel Standards of Conduct Office after opinion was provided ; and (D) by inserting after paragraph (1) the following new paragraph: (2) Inspector General review The Inspector General of the Department of Defense shall conduct periodic reviews not less than biannually to ensure that written opinions are being requested, provided, and retained in accordance with the requirements of this section, as well as any related matters. . 102. Requirements for defense contractors relating to certain former Department of Defense officials and lobbying activities (a) Requirements (1) In general Chapter 141 of title 10, United States Code, is amended by adding at the end the following new section: 2410t. Defense contractors report: requirements concerning former Department of Defense officials and lobbying activities (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 office supplies or food and beverage (vending) services, 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). The Secretary of Defense shall make these reports publicly available on a government website not later than July 1 of each year such contract is in effect. (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 Executive Service under subchapter VIII of chapter 53 of title 5; (iii) in a position compensated at a rate of pay for grade O–6 or above under section 201 of title 37; or (iv) as a program manager, deputy program manager, procuring contracting officer, administrative contracting officer, source selection authority, member of the source selection evaluation board, or chief of a financial or technical evaluation team for a contract with a value in excess of $10,000,000; and (B) during the preceding calendar year was provided compensation by the contractor, if such compensation was first provided by the contractor not more than four years after such officer, employee, or member left service in the Department of Defense; (2) in the case of each person listed under subparagraph (A)— (A) identify the agency in which such person was employed or served on active duty during the last two years of such person’s service with the Department of Defense; (B) state such person’s job title and identify each major defense system, contract, modification, subcontract, task order, and delivery order in excess of $10,000,000, if any, on which such person performed any work with the Department of Defense during the last two years of such person’s service with the Department; and (C) state such person’s current job title with the contractor and identify each major defense system, contract, modification, subcontract, task order, and delivery order in excess of $10,000,000, on which such person has performed any work on behalf of the contractor; and (3) if the contractor is a client, include— (A) a statement that— (i) lists each specific issue for which the contractor, any employee of the contractor, or any lobbyist paid by the contractor engaged in lobbying activities with the Department of Defense; (ii) specifies the Federal rule or regulation, Executive order, or other program, policy, contract, or position of the Department of Defense to which the lobbying activities described in clause (i) related; (iii) lists each lobbying activity relating to the Department of Defense that the contractor, any employee of the contractor, or any lobbyist paid by the contractor has engaged in on behalf of the contractor, including— (I) each document prepared by the contractor, any employee of the contractor, or any lobbyist paid by the contractor that was submitted to an officer or employee of the Department of Defense by the lobbyist; (II) each meeting that was a lobbying contact with an officer or employee of the Department of Defense, including the subject of the meeting, the date of the meeting, and the name and position of each individual who attended the meeting; (III) each phone call made to an officer or employee of the Department of Defense that was a lobbying contact, including the subject of the phone call, the date of the phone call, and the name and position of each individual who was on the phone call; and (IV) each electronic communication (including emails, text messages, and other forms of electronic communication) sent to an officer or employee of the Department of Defense that was a lobbying contact, including the subject of the electronic communication, the date of the electronic communication, and the name and position of each individual who received the electronic communication; (iv) lists the name of each employee of the contractor who— (I) did not participate in a lobbying contact with an officer or employee of the Department of Defense; and (II) engaged in lobbying activities in support of a lobbying contact with an officer or employee of the Department of Defense; and (v) describes the lobbying activities referred to in clause (iv)(II); and (B) a copy of any document transmitted to an officer or employee of the Department of Defense in the course of the lobbying activities described in subparagraph (A)(iv)(II). (c) Definitions In subsection (b)(3), the terms client , lobbying activities , lobbying contact , and lobbyist have the meanings given the terms in section 3 of the Lobbying Disclosure Act of 1995 ( 2 U.S.C. 1602 ). . (2) Clerical amendment The table of sections at the beginning of chapter 141 of such title is amended by adding at the end the following new item: Sec. 2410t. Defense contractors report: requirements concerning former Department of Defense officials and lobbying activities. . (3) Effective date The amendments made by paragraphs (1) and (2) shall take effect on the date of the enactment of this Act, and shall apply with respect to contracts entered into on or after that date. (b) Future transfer (1) Transfer and redesignation Section 2410t of title 10, United States Code, as added by subsection (a), is transferred to chapter 363, as added by section 1862(b) of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 ( Public Law 116–283 ), and redesignated as section 4661. (2) Clerical amendments (A) Target chapter table of sections The table of sections at the beginning of chapter 363 of title 10, United States Code, as added by section 1862(b) of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 ( Public Law 116–283 ), is amended by inserting after the item relating to section 4660 the following: Sec. 4661. Defense contractors report: requirements concerning former Department of Defense officials and lobbying activities. . (B) Origin chapter table of sections The table of sections at the beginning of chapter 141 of title 10, United States Code, is amended by striking the item relating to section 2410t. (3) Effective date The amendments made by this subsection shall take effect on January 1, 2024. (4) References; savings provisions; rule of construction Sections 1883 through 1885 of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 ( Public Law 116–283 ) shall apply with respect to the amendments made under this subsection as if such amendments were made under title XVIII of such Act. 103. Ban on hiring contracting officials enforceable on certain contracts (a) Prohibition (1) In general Any contract for the procurement of goods or services, other than a contract for the procurement of commercial products or services, with a value of excess of $10,000,000 shall include a contract clause prohibiting the contractor from providing compensation to a former Department of Defense official described in paragraph (2) within four years after such former official leaves service in the Department of Defense. (2) Covered department of defense official An official or former official of the Department of Defense is covered by the requirements of this section if such official or former official is a former officer or employee of the Department of Defense or a former or retired member of the Armed Forces who served as a program manager, deputy program manager, procuring contracting officer, administrative contracting officer, source selection authority, member of the source selection evaluation board, or chief of a financial or technical evaluation team or directly managed someone in these roles for a contract with a value in excess of $10,000,000, and such person— (A) participated in the contract or license selection; (B) determined or signed off on the technical requirements of the contract or license; or (C) granted the contract or license. (b) Administrative actions In the event that an official or former official of the Department of Defense described in subsection (a)(2), or a Department of Defense contractor, knowingly fails to comply with the requirements of this subsection, the Secretary of Defense may take any of the administrative actions set forth in section 2105 of title 41, United States Code, that the Secretary of Defense determines to be appropriate. (c) Definitions In this section: (1) Commercial product The term commercial product means any of the following: (A) A product, other than real property, that— (i) is customarily used by the general public or by nongovernmental entities for purposes other than governmental purposes; and (ii) has been sold, leased, or licensed to the general public. (B) A product that— (i) evolved from a product described in subparagraph (A) through advances in technology or performance; and (ii) is not yet available in the commercial marketplace but will be available in the commercial marketplace in time to satisfy the delivery requirements under a Federal Government solicitation. (C) A product that would satisfy the criteria in subparagraph (A) or (B) were it not for— (i) modifications customarily available in the commercial marketplace; or (ii) minor modifications made to meet Federal Government requirements. (D) Any combination of products meeting the requirements of subparagraph (A), (B), or (C) that are customarily combined and sold in combination to the general public. (E) A product, or combination of products, referred to in subparagraphs (A) through (D), even though the product, or combination of products, is transferred between or among separate divisions, subsidiaries, or affiliates of a contractor. (F) A nondevelopmental item if the procuring agency determines, in accordance with conditions in the Federal Acquisition Regulation, that— (i) the product was developed exclusively at private expense; and (ii) has been sold in substantial quantities, on a competitive basis, to multiple State and local governments or to multiple foreign governments. (2) Commercial service The term commercial service means any of the following: (A) Installation services, maintenance services, repair services, training services, and other services if— (i) those services are procured for support of a commercial product, regardless of whether the services are provided by the same source or at the same time as the commercial product; and (ii) the source of the services provides similar services contemporaneously to the general public under terms and conditions similar to those offered to the Federal Government. (B) Services of a type sold competitively, in substantial quantities, in the commercial marketplace— (i) based on established catalog or market prices; (ii) for specific tasks performed or specific outcomes to be achieved; and (iii) under standard commercial terms and conditions. (C) A service described in subparagraph (A) or (B), even though the service is transferred between or among separate divisions, subsidiaries, or affiliates of a contractor. 104. Ban on hiring senior officials by giant defense contractors (a) Prohibition (1) In general Any Department of Defense contract for the procurement of goods or services with a giant defense contractor shall include a contract clause prohibiting the contractor from hiring or paying (including as a consultant, lobbyist, or lawyer) any covered Department of Defense official within four years after such former official leaves service in the Department of Defense. (2) Definitions In this section: (A) Covered Department of Defense official The term covered Department of Defense official means 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, United States Code; (ii) in a position in the Senior Executive Service under subchapter VIII of chapter 53 of title 5, United States Code; (iii) in a position compensated at a rate of pay for grade O–6 or above under section 201 of title 37, United States Code; or (iv) in a supervisory position compensated at a rate of pay for grade GS–15 of the General Schedule under section 5107 of title 5, United States Code, or higher. (B) Giant defense contractor The term giant defense contractor means a contractor (other than an institution of higher education) that received an average of more than $1,000,000,000 in annual revenue from the Department of Defense or the Department of Energy for contracted work related to the United States nuclear program in the previous three fiscal years. (b) Administrative actions In the event that a covered Department of Defense official, or a Department of Defense contractor, knowingly fails to comply with the requirements of this section, the Secretary of Defense may take any of the administrative actions set forth in section 2105 of title 41, United States Code, that the Secretary of Defense determines to be appropriate. (c) Annual report The Inspector General of the Department of Defense shall submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives an annual report listing the officials or former officials of the Department of Defense described in subsection (a)(2)(A), or any Department of Defense contractor, subject to any of the administrative actions from the Secretary of Defense under the requirements of subsection (b) during the prior calendar year. 105. Modification of prohibition on lobbying activities with respect to the Department of Defense by certain officers of the Armed Forces and civilian employees of the Department of Defense following separation from military service or employment with the department Section 1045 of the National Defense Authorization Act for Fiscal Year 2018 ( Public Law 115–91 ; 131 Stat. 1555) is amended— (1) in subsection (a)— (A) in the subsection heading, by striking Two-year prohibition and inserting Four-year prohibition ; (B) in paragraph (1), by striking during the two-year period and inserting during the four-year period ; and (C) in paragraph (2)(A), by striking grade O–9 or higher and inserting grade O–6 or higher ; (2) by striking subsection (b); (3) by redesignating subsection (c) as subsection (b); and (4) in subsection (b)(1)(A), as redesignated by paragraph (3), by inserting , including activities in support of lobbying contact with an officer or employee of the Department of Defense before the period at the end. 106. Enhancement of recusal for conflicts of personal interest requirements for Department of Defense officers and employees Section 1117 of the National Defense Authorization Act for Fiscal Year 2022 ( Public Law 117–81 ; 10 U.S.C. 971 note prec.) is amended— (1) in subsection (a)— (A) by striking particular matter and inserting covered matter ; (B) by striking where any of the following organizations is a party or represents a party to the matter: and inserting where any of the following organizations or entities is a party or represents a party to the matter, or where the officer or employee knows, or reasonably should know, the matter is likely to have a direct and predictable effect on the financial interests of any of the following organizations or entities: ; (C) in paragraph (1), by striking 2 years and inserting 4 years ; and (D) by inserting after paragraph (2) the following new paragraph: (3) A former direct competitor or client of any organization for which the officer or employee has served as an employee, officer, director, trustee, or general partner in the past 4 years. ; (2) by redesignating subsection (c) as subsection (d); and (3) by inserting after subsection (b) the following new subsection: (c) Covered matter defined In this section, the term covered matter — (1) means any matter that involves deliberation, decision, or action that is focused upon the interests of a specific person or a discrete and identifiable class of persons; and (2) includes policy making that is narrowly focused on the interests of a discrete and identifiable class of persons. . 107. Prohibition on ownership or trading of stocks in certain companies by Department Of Defense officers and employees (a) Prohibition on ownership and trading publicly traded stocks Section 988(a) of title 10, United States Code, is amended by striking if that company is one of the 10 entities awarded the most amount of contract funds by the Department of Defense in a fiscal year during the five preceding fiscal years and inserting if, during the preceding calendar year, the company received more than $100,000,000 in revenue from the Department of Defense, including through 1 or more contracts with the Department . (b) Definition of covered official Section 988 of title 10, United States Code, is amended— (1) by redesignating subsection (c) as subsection (d); and (2) in paragraph (1) of subsection (d), as redesignated by paragraph (1) of this section, by striking means any and all that follows through the period at the end of subparagraph (B) and inserting means any official described in section 847(c) of the National Defense Authorization Act for Fiscal Year 2008 ( 10 U.S.C. 1701 note). . (c) Penalty Section 988 of title 10, United States Code, as amended by subsection (b), is further amended by inserting after subsection (b) the following new subsection: (c) Penalties Whoever violates subsection (a) shall be subject to the penalties set forth in section 216 of title 18, United States Code. . II Limiting foreign influence 201. Ban on senior national security officials advising foreign governments Section 207(f) of title 18, United States Code, is amended— (1) by redesignating paragraph (3) as paragraph (4); and (2) by inserting after paragraph (2) the following new paragraph: (3) Permanent restriction Any person who has been employed as a senior official in the White House, the Department of State, the Department of Defense, or the Department of the Treasury who performs compensated work for the benefit of a foreign entity that stands to benefit from the knowledge obtained by the person as a result of such United States Government employment, shall be punished as provided in section 216 of this title. . 202. Ban on former military and civilian intelligence officers from foreign employment All military and civilian intelligence personnel employed by a military intelligence organization possessing a security clearance, upon separation from service or resignation, are prohibited from obtaining employment with a foreign government or a private company doing work predominantly on behalf of a foreign government. Any intelligence personnel who performs compensated work for the benefit of a foreign entity that stands to benefit from the knowledge obtained by the person as a result of such United States Government employment, shall be punished as provided in section 216 of title 18, United States Code. III Transparency 301. Affirmative contractor record disclosures The Secretary of Defense shall publish on a publicly available internet website the following information to the extent such information is unclassified and non-confidential: (1) In the case of a contract with the Department of Defense for goods or services above the simplified acquisition threshold specified in section 134 of title 41, United States Code, copies of all contracts, subcontracts, purchase orders, delivery orders, task orders, lease agreements, and assignments entered into with the Department of Defense during the previous 3 fiscal years. (2) In the case of a contract with the Department of Defense for goods or services in excess of $10,000,000, all records related to lack of performance, failure to meet contract requirements, and any resulting corrective action plans, cure notices, show cause notices, and non-conformance reports. (3) The contractor report required under section 2410t of title 10, United States Code, as added by section 102 of this Act. 302. Publication of contractor evaluation ratings Section 2313(c) of title 41, United States Code, is amended by adding at the end the following new paragraph: (9) Contractor evaluation ratings as provided for at paragraph (b)(4) of section 1503 of part 42 of title 48, Code of Federal Regulations, as of the date of enactment of this paragraph. . 303. Ownership of information Any entity of the Department of Defense that enters into a contract or agreement with, or provides funding to, a nongovernmental entity for the purposes of procuring goods or services shall— (1) for the purposes of paragraph (3), be deemed to have control over all information of the entity related to— (A) any costs or the expenditure of any funds related to the contract or agreement; and (B) any other information related to the performance of the contract or agreement; (2) provide access to the information described in paragraph (1), which shall be considered an agency record , to any person upon request made pursuant to paragraph (3); and (3) include compliance with this subsection as a material term in any contract, agreement, or renewal of a contract or agreement with any nongovernmental entity for the purposes of procuring goods or services. 304. Financial disclosure by large contractors (a) Disclosure requirement (1) In general The Secretary of Defense shall require a covered contractor, as a condition for entering into a contract with the Department of Defense, to make publicly available on an annual basis the following information (excluding information determined to be classified by the Secretary): (A) Audited financial statements. (B) A listing of the salaries of employees performing work on the contract that receive compensation from the contractor in excess of $250,000 per year. (C) A description of all Federal political spending, including lobbying, by the contractor. (2) Suspension and debarment The Secretary of Defense may suspend or debar any covered contractor that fails to comply with the disclosure requirements under paragraph (1). (3) Covered contractor defined The term covered contractor means a contractor (other than an institute of higher education) that— (A) received more than $10,000,000 in annual revenue from Federal Government contracts or licenses in any of the previous three fiscal years; or (B) earned more than 20 percent of its total annual revenue from Federal Government contracts or licenses in any of the previous three fiscal years. 305. Availability on the internet of certain information about officers serving in general or flag officer grades (a) Availability required The Secretary of each military department shall make available on a publicly available internet website of such department the information specified in subsection (b) related to each officer in a general or flag officer grade under the jurisdiction of such Secretary, including any such officer on the reserve active-status list. (b) Information The information on an officer referred to in subsection (a) is as follows: (1) The officer’s name. (2) The officer’s current billet. (3) A biographical summary of the officer. (4) Any financial disclosures made by the officer to or for Department of Defense purposes. (5) Any substantiated reports of an Inspector General in the Department of Defense involving conduct of the officer. (6) Summaries of any command climate survey conducted with respect to a command of the officer. (c) Redaction Information made available pursuant to subsection (a) may be redacted in a manner that accords with the provisions of section 552a of title 5, United States Code (commonly referred to as the Privacy Act ).