Honest Leadership and Accountability in Contracting Act of 2006 - Amends the federal criminal code to impose fines and penalties on war profiteering and fraud.
Requires revision of the Federal Acquisition Regulation (FAR) to provide that no prospective contractor shall be considered to have a satisfactory record of integrity and ethics if it has a pattern of either overcharging the government or failing to comply with the law.
Provides for the disclosure to Congress of audit reports issued by executive agencies. Requires the Federal Procurement Data System to be modified to include publication of information on specified federal contractor penalties and violations.
Amends the Federal Property and Administrative Services Act of 1949 to prohibit awarding of certain monopoly federal contracts.
Requires revision of the FAR to require competition for certain multiple award contracts. Denies protest rights for certain awards.
Prohibits an agency from contracting for the performance of: (1) any inherently governmental function; or (2) acquisition functions closely associated with inherently governmental functions.
Prescribes minimum requirements for political appointees holding public contracting and safety positions.
Includes as a protected disclosure by a Federal employee: (1) any lawful disclosure an employee or applicant reasonably believes is credible evidence of waste, abuse, or gross mismanagement, without restriction as to time, place, form, motive, context, or prior disclosure; and (2) the disclosure of information required to be kept secret in the interest of national defense or the conduct of foreign affairs that the employee or applicant reasonably believes is direct evidence of waste, abuse, or gross mismanagement if such disclosure is made to a Member or employee of Congress who is authorized to receive information of the type disclosed.
Sets forth provisions concerning review and appeal of actions concerning such disclosures.
Amends the Homeland Security Act of 2002 to provide that, for purposes of provisions regarding the protection of voluntarily shared critical infrastructure information, a permissible use of independently obtained critical infrastructure information includes any lawful disclosure an employee or applicant reasonably believes is credible evidence of waste, fraud, abuse, or gross mismanagement, without restriction as to time, place, form, motive, context, or prior disclosure.
Requires agencies to inform employees on how to make a lawful disclosure of information.
[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 2361 Introduced in Senate (IS)]
109th CONGRESS
2d Session
S. 2361
To improve Federal contracting and procurement by eliminating fraud and
abuse and improving competition in contracting and procurement and by
enhancing administration of Federal contracting personnel, and for
other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
March 2, 2006
Mr. Dorgan (for himself, Mr. Bingaman, Mrs. Boxer, Mr. Carper, Mrs.
Clinton, Mr. Dayton, Mr. Durbin, Mr. Feingold, Mrs. Feinstein, Mr.
Harkin, Mr. Johnson, Mr. Kennedy, Mr. Kerry, Ms. Landrieu, Mr.
Lautenberg, Mr. Leahy, Mr. Menendez, Ms. Mikulski, Mr. Obama, Mr.
Pryor, Mr. Reid, Mr. Rockefeller, Mr. Salazar, Ms. Stabenow, Mr. Wyden,
Mr. Kohl, Mr. Schumer, and Mr. Nelson of Florida) introduced the
following bill; which was read twice and referred to the Committee on
Homeland Security and Governmental Affairs
_______________________________________________________________________
A BILL
To improve Federal contracting and procurement by eliminating fraud and
abuse and improving competition in contracting and procurement and by
enhancing administration of Federal contracting personnel, 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 ``Honest Leadership and Accountability
in Contracting Act of 2006''.
TITLE I--ELIMINATION OF FRAUD AND ABUSE
SEC. 101. PROHIBITION OF WAR PROFITEERING AND FRAUD.
(a) Prohibition.--
(1) In general.--Chapter 47 of title 18, United States
Code, is amended by adding at the end the following:
``Sec. 1039. War profiteering and fraud
``(a) Prohibition.--
``(1) In general.--Whoever, in any matter involving a
contract or the provision of goods or services, directly or
indirectly, in connection with a war or military action
knowingly and willfully--
``(A) executes or attempts to execute a scheme or
artifice to defraud the United States or the entity
having jurisdiction over the area in which such
activities occur;
``(B) falsifies, conceals, or covers up by any
trick, scheme, or device a material fact;
``(C) makes any materially false, fictitious, or
fraudulent statements or representations, or makes or
uses any materially false writing or document knowing
the same to contain any materially false, fictitious,
or fraudulent statement or entry; or
``(D) materially overvalues any good or service
with the specific intent to excessively profit from the
war or military action;
shall be fined under paragraph (2), imprisoned not more than 20
years, or both.
``(2) Fine.--A person convicted of an offense under
paragraph (1) may be fined the greater of--
``(A) $1,000,000; or
``(B) if such person derives profits or other
proceeds from the offense, not more than twice the
gross profits or other proceeds.
``(b) Extraterritorial Jurisdiction.--There is extraterritorial
Federal jurisdiction over an offense under this section.
``(c) Venue.--A prosecution for an offense under this section may
be brought--
``(1) as authorized by chapter 211 of this title;
``(2) in any district where any act in furtherance of the
offense took place; or
``(3) in any district where any party to the contract or
provider of goods or services is located.''.
(2) Clerical amendment.--The table of sections for chapter
47 of title 18, United States Code, is amended by adding at the
end the following:
``1039. War profiteering and fraud.''.
(b) Civil Forfeiture.--Section 981(a)(1)(C) of title 18, United
States Code, is amended by inserting ``1039,'' after ``1032,''.
(c) Criminal Forfeiture.--Section 982(a)(2)(B) of title 18, United
States Code, is amended by striking ``or 1030'' and inserting ``1030,
or 1039''.
(d) Treatment Under Money Laundering Offense.--Section
1956(c)(7)(D) of title 18, United States Code, is amended by inserting
the following: ``, section 1039 (relating to war profiteering and
fraud)'' after ``liquidating agent of financial institution),''.
SEC. 102. SUSPENSION AND DEBARMENT OF UNETHICAL CONTRACTORS.
(a) In General.--Not later than 90 days after the date of enactment
of this Act, the Federal Acquisition Regulation issued pursuant to
section 25 of the Office of Federal Procurement Policy Act (41 U.S.C.
421) shall be revised to provide that no prospective contractor shall
be considered to have a satisfactory record of integrity and business
ethics if it--
(1) has exhibited a pattern of overcharging the Government
under Federal contracts; or
(2) has exhibited a pattern of failing to comply with the
law, including tax, labor and employment, environmental,
antitrust, and consumer protection laws.
(b) Effective Date.--The revised regulation required by this
section shall apply with respect to all contracts for which
solicitations are issued after the date that is 90 days after the date
of the enactment of this Act.
SEC. 103. DISCLOSURE OF AUDIT REPORTS.
(a) Disclosure of Information to Congress.--
(1) In general.--The head of each executive agency shall
maintain a list of audit reports issued by the agency during
the current and previous calendar years that--
(A) describe significant contractor costs that have
been identified as unjustified, unsupported,
questioned, or unreasonable under any contract, task or
delivery order, or subcontract; or
(B) identify significant or substantial
deficiencies in any business system of any contractor
under any contract, task or delivery order, or
subcontract.
(2) Submission of individual audits.--The head of each
executive agency shall provide, within 14 days of a request in
writing by the chairman or ranking member of a committee of
jurisdiction, a full and unredacted copy of--
(A) the current version of the list maintained
pursuant to paragraph (1); or
(B) any audit or other report identified on such
list.
(b) Publication of Information on Federal Contractor Penalties and
Violations.--
(1) In general.--Not later than 180 days after the date of
the enactment of this Act, the Federal Procurement Data System
shall be modified to include--
(A) information on instances in which any major
contractor has been fined, paid penalties or
restitution, settled, plead guilty to, or had judgments
entered against it in connection with allegations of
improper conduct; and
(B) information on all sole source contract awards
in excess of $2,000,000 entered into by an executive
agency.
(2) Publicly available website.--The information required
by paragraph (1) shall be made available through the publicly
available website of the Federal Procurement Data System.
TITLE II--CONTRACT MATTERS
Subtitle A--Competition in Contracting
SEC. 201. PROHIBITION ON AWARD OF MONOPOLY CONTRACTS.
(a) Civilian Agency Contracts.--Section 303H(d) of the Federal
Property and Administrative Services Act of 1949 (41 U.S.C. 253h(d)) is
amended by adding at the end the following new paragraph:
``(4)(A) No task or delivery order contract in an amount estimated
to exceed $100,000,000 (including all options) may be awarded to a
single contractor unless the head of the agency determines in writing
that--
``(i) because of the size, scope, or method of performance
of the requirement, it would not be practical to award multiple
task or delivery order contracts;
``(ii) the task orders expected under the contract are so
integrally related that only a single contractor can reasonably
perform the work; or
``(iii) for any other reason, it is necessary in the public
interest to award the contract to a single contractor.
``(B) The head of the agency shall notify Congress within 30 days
of any determination under subparagraph (A)(iii).''.
(b) Defense Contracts.--Section 2304a(d) of title 10, United States
Code, is amended by adding at the end the following new paragraph:
``(4)(A) No task or delivery order contract in an amount estimated
to exceed $100,000,000 (including all options) may be awarded to a
single contractor unless the head of the agency determines in writing
that--
``(i) because of the size, scope, or method of performance
of the requirement, it would not be practical to award multiple
task or delivery order contracts;
``(ii) the task orders expected under the contract are so
integrally related that only a single contractor can reasonably
perform the work; or
``(iii) for any other reason, it is necessary in the public
interest to award the contract to a single contractor.
``(B) The head of the agency shall notify Congress within 30 days
of any determination under subparagraph (A)(iii).''.
SEC. 202. COMPETITION IN MULTIPLE AWARD CONTRACTS.
(a) Regulations Required.--Not later than 180 days after the date
of the enactment of this section, the Federal Acquisition Regulation
shall be revised to require competition in the purchase of goods and
services by each executive agency pursuant to multiple award contracts.
(b) Content of Regulations.--(1) The regulations required by
subsection (a) shall provide, at a minimum, that each individual
purchase of goods or services in excess of $1,000,000 that is made
under a multiple award contract shall be made on a competitive basis
unless a contracting officer of the executive agency--
(A) waives the requirement on the basis of a determination
that--
(i) one of the circumstances described in
paragraphs (1) through (4) of section 303J(b) of the
Federal Property and Administrative Services Act of
1949 (41 U.S.C. 253j(b)) applies to such individual
purchase; or
(ii) a statute expressly authorizes or requires
that the purchase be made from a specified source; and
(B) justifies the determination in writing.
(2) For purposes of this subsection, an individual purchase of
goods or services is made on a competitive basis only if it is made
pursuant to procedures that--
(A) require fair notice of the intent to make that purchase
(including a description of the work to be performed and the
basis on which the selection will be made) to be provided to
all contractors offering such goods or services under the
multiple award contract; and
(B) afford all contractors responding to the notice a fair
opportunity to make an offer and have that offer fairly
considered by the official making the purchase.
(3) Notwithstanding paragraph (2), notice may be provided to fewer
than all contractors offering such goods or services under a multiple
award contract described in subsection (c)(2)(A) if notice is provided
to as many contractors as practicable.
(4) A purchase may not be made pursuant to a notice that is
provided to fewer than all contractors under paragraph (3) unless--
(A) offers were received from at least three qualified
contractors; or
(B) a contracting officer of the executive agency
determines in writing that no additional qualified contractors
were able to be identified despite reasonable efforts to do so.
(c) Definitions.--In this section:
(1) The term ``individual purchase'' means a task order,
delivery order, or other purchase.
(2) The term ``multiple award contract'' means--
(A) a contract that is entered into by the
Administrator of General Services under the multiple
award schedule program referred to in section 309(b)(3)
of the Federal Property and Administrative Services Act
of 1949 (41 U.S.C. 259(b)(3));
(B) a multiple award task order contract that is
entered into under the authority of sections 2304a
through 2304d of title 10, United States Code, or
sections 303H through 303K of the Federal Property and
Administrative Services Act of 1949 (41 U.S.C. 253h
through 253k); and
(C) any other indefinite delivery, indefinite
quantity contract that is entered into by the head of
an executive agency with two or more sources pursuant
to the same solicitation.
(d) Applicability.--The revisions to the Federal Acquisition
Regulation pursuant to subsection (a) shall take effect not later than
180 days after the date of the enactment of this Act, and shall apply
to all individual purchases of goods or services that are made under
multiple award contracts on or after the effective date, without regard
to whether the multiple award contracts were entered into before, on,
or after such effective date.
(e) Conforming Amendments to Defense Contract Provision.--Section
803 of the National Defense Authorization Act for Fiscal Year 2002
(Public Law 107-107; 10 U.S.C. 2304 note) is amended as follows:
(1) Goods covered.--(A) The section heading is amended by
inserting ``goods or'' before ``services''.
(B) Subsection (a) is amended by inserting ``goods and''
before ``services''.
(C) The following provisions are amended by inserting
``goods or'' before ``services'' each place it appears:
(i) Paragraphs (1), (2), and (3) of subsection (b).
(ii) Subsection (d).
(D) Such section is amended by adding at the end the
following new subsection:
``(e) Applicability to Goods.--The Secretary shall revise the
regulations promulgated pursuant to subsection (a) to cover purchases
of goods by the Department of Defense pursuant to multiple award
contracts. The revised regulations shall take effect in final form not
later than 180 days after the date of the enactment of this subsection
and shall apply to all individual purchases of goods that are made
under multiple award contracts on or after the effective date, without
regard to whether the multiple award contracts were entered into
before, on, or after such effective date.''.
(f) Protest Rights for Certain Awards.--
(1) Civilian agency contracts.--Section 303J(d) of the
Federal Property and Administrative Services Act (41 U.S.C.
253j(d)) is amended by inserting ``with a value of less than
$500,000'' after ``task or delivery order''.
(2) Defense contracts.--Section 2304c(d) of title 10,
United States Code, is amended by inserting ``with a value of
less than $500,000'' after ``task or delivery order''.
Subtitle B--Contract Personnel Matters
SEC. 211. CONTRACTOR CONFLICTS OF INTEREST.
(a) Prohibition on Contracts Relating to Inherently Governmental
Functions.--The head of an agency may not enter into a contract for the
performance of any inherently governmental function.
(b) Prohibition on Contracts for Contract Oversight.--
(1) Prohibition.--The head of an agency may not enter into
a contract for the performance of acquisition functions closely
associated with inherently governmental functions with any
entity unless the head of the agency determines in writing
that--
(A) neither that entity nor any related entity will
be responsible for performing any of the work under a
contract which the entity will help plan, evaluate,
select a source, manage or oversee; and
(B) the agency has taken appropriate steps to
prevent or mitigate any organizational conflict of
interest that may arise because the entity--
(i) has a separate ongoing business
relationship, such as a joint venture or
contract, with any of the contractors to be
overseen;
(ii) would be placed in a position to
affect the value or performance of work it or
any related entity is doing under any other
Government contract;
(iii) has a reverse role with the
contractor to be overseen under one or more
separate Government contracts; or
(iv) has some other relationship with the
contractor to be overseen that could reasonably
appear to bias the contractor's judgment.
(2) Related entity defined.--In this subsection, the term
``related entity'', with respect to a contractor, means any
subsidiary, parent, affiliate, joint venture, or other entity
related to the contractor.
(c) Definitions.--In this section:
(1) The term ``inherently governmental functions'' has the
meaning given to such term in part 7.5 of the Federal
Acquisition Regulation.
(2) The term ``functions closely associated with
governmental functions'' means the functions described in
section 7.503(d) of the Federal Acquisition Regulation.
(3) The term ``organizational conflict of interest'' has
the meaning given such term in part 9.5 of the Federal
Acquisition Regulation.
(d) Effective Date and Applicability.--This section shall take
effect on the date of the enactment of this Act and shall apply to--
(1) contracts entered into on or after such date;
(2) any task or delivery order issued on or after such date
under a contract entered into before, on, or after such date;
and
(3) any decision on or after such date to exercise an
option or otherwise extend a contract for the performance of a
function relating to contract oversight regardless of whether
such contract was entered into before, on, or after such date.
SEC. 212. ELIMINATION OF REVOLVING DOOR BETWEEN FEDERAL PERSONNEL AND
CONTRACTORS.
(a) Elimination of Loopholes Allowing Former Federal Officials To
Accept Compensation From Contractors or Related Entities.--
(1) In general.--Paragraph (1) of subsection (d) of section
27 of the Office of Federal Procurement Policy Act (41 U.S.C.
423) is amended--
(A) by striking ``or consultant'' and inserting
``consultant, lawyer, or lobbyist'';
(B) by striking ``one year'' and inserting ``two
years''; and
(C) in subparagraph (C), by striking ``personally
made for the Federal agency--'' and inserting
``participated personally and substantially in--''.
(2) Definition.--Paragraph (2) of such subsection is
amended to read as follows:
``(2) For purposes of paragraph (1), the term `contractor' includes
any division, affiliate, subsidiary, parent, joint venture, or other
related entity of a contractor.''.
(b) Prohibition on Award of Government Contracts to Former
Employers.--Such section is further amended by adding at the end the
following new subsection:
``(i) Prohibition on Involvement by Certain Former Contractor
Employees in Procurements.--A former employee of a contractor who
becomes an employee of the Federal Government shall not be personally
and substantially involved with any Federal agency procurement
involving the employee's former employer, including any division,
affiliate, subsidiary, parent, joint venture, or other related entity
of the former employer, for a period of two years beginning on the date
on which the employee leaves the employment of the contractor unless
the designated agency ethics officer for the agency determines in
writing that the government's interest in the former employee's
participation in a particular procurement outweighs any appearance of
impropriety.''.
(c) Requirement for Federal Procurement Officers To Disclose Job
Offers Made to Relatives.--Subsection (c)(1) of such section is amended
by inserting after ``that official'' the following: ``, or for a
relative of that official (as defined in section 3110 of title 5,
United States Code),''.
(d) Additional Criminal Penalties.--Paragraph (1) of subsection (e)
of such section is amended to read as follows:
``(1) Criminal penalties.--Whoever engages in conduct
constituting a violation of--
``(A) subsection (a) or (b) for the purpose of
either--
``(i) exchanging the information covered by
such subsection for anything of value, or
``(ii) obtaining or giving anyone a
competitive advantage in the award of a Federal
agency procurement contract; or
``(B) subsection (c) or (d);
shall be imprisoned for not more than 5 years, fined as
provided under title 18, Untied States Code, or both.''.
(e) Regulations.--Such section is further amended by adding at the
end the following new subsection:
``(j) Regulations.--The Director of the Office of Government
Ethics, in consultation with the Administrator, shall--
``(1) promulgate regulations to carry out and ensure the
enforcement of this section; and
``(2) monitor and investigate individual and agency
compliance with this section.''.
TITLE III--OTHER PERSONNEL MATTERS
SEC. 301. MINIMUM REQUIREMENTS FOR POLITICAL APPOINTEES HOLDING PUBLIC
CONTRACTING AND SAFETY POSITIONS.
(a) In General.--A position specified in subsection (b) may not be
held by any political appointee who does not meet the requirements of
subsection (c).
(b) Specified Positions.--A position specified in this subsection
is any position as follows:
(1) A public contracting position.
(2) A public safety position.
(c) Minimum Requirements.--An individual shall not, with respect to
any position, be considered to meet the requirements of this subsection
unless such individual--
(1) has academic, management, and leadership credentials in
one or more areas relevant to such position;
(2) has a superior record of achievement in one or more
areas relevant to such position;
(3) has training and expertise in one or more areas
relevant to such position; and
(4) has not, within the 2-year period ending on the date of
such individual's nomination for or appointment to such
position, been a lobbyist for any entity or other client that
is subject to the authority of the agency within which, if
appointed, such individual would serve.
(d) Political Appointee.--For purposes of this section, the term
``political appointee'' means any individual who--
(1) is employed in a position listed in sections 5312
through 5316 of title 5, United States Code (relating to the
Executive Schedule);
(2) is a limited term appointee, limited emergency
appointee, or noncareer appointee in the Senior Executive
Service; or
(3) is employed in the executive branch of the Government
in a position which has been excepted from the competitive
service by reason of its policy-determining, policy-making, or
policy-advocating character.
(e) Public Contracting Position.--For purposes of this section, the
term ``public contracting position'' means the following:
(1) The Administrator for Federal Procurement Policy.
(2) The Administrator of the General Services
Administration.
(3) The Chief Acquisition Officer of any executive agency,
as appointed or designated pursuant to section 16 of the Office
of Federal Procurement Policy Act (41 U.S.C. 414).
(4) The Under Secretary of Defense for Acquisition,
Technology, and Logistics.
(5) Any position (not otherwise identified under any of the
preceding provisions of this subsection) a primary function of
which involves government procurement and procurement policy,
as identified by the head of each employing agency in
consultation with the Office of Personnel Management.
(f) Public Safety Position.--For purposes of this section, the term
``public safety position'' means the following:
(1) The Under Secretary for Emergency Preparedness and
Response, Department of Homeland Security.
(2) The Director of the Federal Emergency Management
Agency, Department of Homeland Security.
(3) Each regional director of the Federal Emergency
Management Agency, Department of Homeland Security.
(4) The Recovery Division Director of the Federal Emergency
Management Agency, Department of Homeland Security.
(5) The Assistant Secretary for Immigration and Customs
Enforcement, Department of Homeland Security.
(6) The Assistant Secretary for Public Health Emergency
Preparedness, Department of Health and Human Services.
(7) The Assistant Administrator for Solid Waste and
Emergency Response, Environmental Protection Agency.
(8) Any position (not otherwise identified under any of the
preceding provisions of this subsection) a primary function of
which involves responding to a direct threat to life or
property or a hazard to health, as identified by the head of
each employing agency in consultation with the Office of
Personnel Management.
(g) Publication of Positions.--Beginning not later than 30 days
after the date of the enactment of this Act, the head of each agency
shall maintain on such agency's public website a current list of all
public contracting positions and public safety positions within such
agency.
(h) Coordination With Other Requirements.--The requirements set
forth in subsection (c) shall be in addition to, and not in lieu of,
any requirements that might otherwise apply with respect to any
particular position.
(i) Definitions.--In this section:
(1) The term ``agency'' means an Executive agency (as
defined by section 105 of title 5, United States Code).
(2) The terms ``limited term appointee'', ``limited
emergency appointee'', and ``noncareer appointee'' have the
meanings given such terms in section 3132 of title 5, United
States Code.
(3) The term ``Senior Executive Service'' has the meaning
given such term by section 2101a of title 5, United States
Code.
(4) The term ``competitive service'' has the meaning given
such term by section 2102 of title 5, United States Code.
(5) The terms ``lobbyist'' and ``client'' have the
respective meanings given them by section 3 of the Lobbying
Disclosure Act of 1995 (2 U.S.C. 1602).
(j) Conforming Amendment.--Section 16(a) of the Office of Federal
Procurement Policy Act (41 U.S.C. 414(a)) is amended by striking ``non-
career employee as''.
SEC. 302. PROTECTION OF CERTAIN DISCLOSURES OF INFORMATION BY FEDERAL
EMPLOYEES.
(a) Clarification of Disclosures Covered.--Section 2302(b)(8) of
title 5, United States Code, is amended--
(1) in subparagraph (A)--
(A) by striking ``which the employee or applicant
reasonably believes evidences'' and inserting ``,
without restriction to time, place, form, motive,
context, or prior disclosure made to any person by an
employee or applicant, including a disclosure made in
the ordinary course of an employee's duties, that the
employee or applicant reasonably believes is evidence
of''; and
(B) in clause (i), by striking ``a violation'' and
inserting ``any violation'';
(2) in subparagraph (B)--
(A) by striking ``which the employee or applicant
reasonably believes evidences'' and inserting ``,
without restriction to time, place, form, motive,
context, or prior disclosure made to any person by an
employee or applicant, including a disclosure made in
the ordinary course of an employee's duties, of
information that the employee or applicant reasonably
believes is evidence of''; and
(B) in clause (i), by striking ``a violation'' and
inserting ``any violation (other than a violation of
this section)''; and
(3) by adding at the end the following:
``(C) any disclosure that--
``(i) is made by an employee or applicant
of information required by law or Executive
order to be kept secret in the interest of
national defense or the conduct of foreign
affairs that the employee or applicant
reasonably believes is direct and specific
evidence of--
``(I) any violation of any law,
rule, or regulation;
``(II) gross mismanagement, a gross
waste of funds, an abuse of authority,
or a substantial and specific danger to
public health or safety; or
``(III) a false statement to
Congress on an issue of material fact;
and
``(ii) is made to--
``(I) a member of a committee of
Congress;
``(II) any other Member of
Congress; or
``(III) an employee of Congress who
has the appropriate security clearance
and is authorized to receive
information of the type disclosed.''.
(b) Covered Disclosures.--Section 2302(a)(2) of title 5, United
States Code, is amended--
(1) in subparagraph (B)(ii), by striking ``and'' at the
end;
(2) in subparagraph (C)(iii), by striking the period at the
end and inserting ``; and''; and
(3) by adding at the end the following:
``(D) `disclosure' means a formal or informal communication
or transmission, but does not include a communication
concerning policy decisions that lawfully exercise
discretionary authority unless the employee providing the
disclosure reasonably believes that the disclosure evidences--
``(i) any violation of any law, rule, or
regulation; or
``(ii) gross management, a gross waste of funds, an
abuse of authority, or a substantial and specific
danger to public health or safety.''.
(c) Rebuttable Presumption.--Section 2302(b) of title 5, United
States Code, is amended by amending the matter following paragraph (12)
to read as follows:
``This subsection shall not be construed to authorize the withholding
of information from Congress or the taking of any personnel action
against an employee who discloses information to Congress. For purposes
of paragraph (8), any presumption relating to the performance of a duty
by an employee who has authority to take, direct others to take,
recommend, or approve any personnel action may be rebutted by
substantial evidence. For purposes of paragraph (8), a determination as
to whether an employee or applicant reasonably believes that they have
disclosed information that evidences any violation of law, rule,
regulation, gross mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to public health or
safety shall be made by determining whether a disinterested observer
with knowledge of the essential facts known to and readily
ascertainable by the employee would reasonably conclude that the
actions of the Government evidence such violations, mismanagement,
waste, abuse, or danger.''.
(d) Nondisclosure Policies, Forms, and Agreements; Security
Clearances; and Retaliatory Investigations.--
(1) Personnel action.--Section 2302(a)(2)(A) of title 5,
United States Code, is amended--
(A) in clause (x), by striking ``and'' after the
semicolon; and
(B) by redesignating clause (xi) as clause (xiv)
and inserting after clause (x) the following:
``(xi) the implementation or enforcement of
any nondisclosure policy, form, or agreement;
``(xii) a suspension, revocation, or other
determination relating to a security clearance
or any other access determination by a covered
agency;
``(xiii) an investigation, other than any
ministerial or nondiscretionary fact finding
activities necessary for the agency to perform
its mission, of an employee or applicant for
employment because of any activity protected
under this section; and''.
(2) Prohibited personnel practice.--Section 2302(b) of
title 5, United States Code, is amended--
(A) in paragraph (11), by striking ``or'' at the
end;
(B) in paragraph (12), by striking the period and
inserting a semicolon; and
(C) by inserting after paragraph (12) the
following:
``(13) implement or enforce any nondisclosure policy, form,
or agreement, if such policy, form, or agreement does not
contain the following statement: `These provisions are
consistent with and do not supersede, conflict with, or
otherwise alter the employee obligations, rights, or
liabilities created by Executive Order No. 12958; section 7211
(governing disclosures to Congress); section 1034 of title 10
(governing disclosure to Congress by members of the military);
section 2302(b)(8) (governing disclosures of illegality, waste,
fraud, abuse, or public health or safety threats); the
Intelligence Identities Protection Act of 1982 (50 U.S.C. 421
et seq.) (governing disclosures that could expose confidential
Government agents); and the statutes which protect against
disclosures that could compromise national security, including
sections 641, 793, 794, 798, and 952 of title 18 and section
4(b) of the Subversive Activities Control Act of 1950 (50
U.S.C. 783(b)). The definitions, requirements, obligations,
rights, sanctions, and liabilities created by such Executive
order and such statutory provisions are incorporated into this
agreement and are controlling'; or
``(14) conduct, or cause to be conducted, an investigation,
other than any ministerial or nondiscretionary fact finding
activities necessary for the agency to perform its mission, of
an employee or applicant for employment because of any activity
protected under this section.''.
(3) Board and court review of actions relating to security
clearances.--
(A) In general.--Chapter 77 of title 5, United
States Code, is amended by inserting after section 7702
the following:
``Sec. 7702a. Actions relating to security clearances
``(a) In any appeal relating to the suspension, revocation, or
other determination relating to a security clearance or access
determination, the Merit Systems Protection Board or any reviewing
court--
``(1) shall determine whether paragraph (8) or (9) of
section 2302(b) was violated;
``(2) may not order the President or the designee of the
President to restore a security clearance or otherwise reverse
a determination of clearance status or reverse an access
determination; and
``(3) subject to paragraph (2), may issue declaratory
relief and any other appropriate relief.
``(b)(1) If, in any final judgment, the Board or court declares
that any suspension, revocation, or other determination with regards to
a security clearance or access determination was made in violation of
paragraph (8) or (9) of section 2302(b), the affected agency shall
conduct a review of that suspension, revocation, access determination,
or other determination, giving great weight to the Board or court
judgment.
``(2) Not later than 30 days after any Board or court judgment
declaring that a security clearance suspension, revocation, access
determination, or other determination was made in violation of
paragraph (8) or (9) of section 2302(b), the affected agency shall
issue an unclassified report to the congressional committees of
jurisdiction (with a classified annex if necessary), detailing the
circumstances of the agency's security clearance suspension,
revocation, other determination, or access determination. A report
under this paragraph shall include any proposed agency action with
regards to the security clearance or access determination.
``(c) An allegation that a security clearance or access
determination was revoked or suspended in retaliation for a protected
disclosure shall receive expedited review by the Office of Special
Counsel, the Merit Systems Protection Board, and any reviewing court.
``(d) For purposes of this section, corrective action may not be
ordered if the agency demonstrates by a preponderance of the evidence
that it would have taken the same personnel action in the absence of
such disclosure.''.
(B) Technical and conforming amendment.--The table
of sections for chapter 77 of title 5, United States
Code, is amended by inserting after the item relating
to section 7702 the following:
``7702a. Actions relating to security clearances.''.
(e) Exclusion of Agencies by the President.--Section 2302(a)(2)(C)
of title 5, United States Code, is amended by striking clause (ii) and
inserting the following:
``(ii)(I) the Federal Bureau of Investigation, the
Office of the Director of National Intelligence, the
Central Intelligence Agency, the Defense Intelligence
Agency, the National Geospatial-Intelligence Agency,
and the National Security Agency; and
``(II) as determined by the President, any
executive agency or unit thereof the principal function
of which is the conduct of foreign intelligence or
counterintelligence activities, if the determination
(as that determination relates to a personnel action)
is made before that personnel action; or''.
(f) Attorney Fees.--Section 1204(m)(1) of title 5, United States
Code, is amended by striking ``agency involved'' and inserting ``agency
where the prevailing party is employed or has applied for employment''.
(g) Disciplinary Action.--Section 1215(a)(3) of title 5, United
States Code, is amended to read as follows:
``(3)(A) A final order of the Board may impose--
``(i) disciplinary action consisting of removal,
reduction in grade, debarment from Federal employment
for a period not to exceed 5 years, suspension, or
reprimand;
``(ii) an assessment of a civil penalty not to
exceed $1,000; or
``(iii) any combination of disciplinary actions
described under clause (i) and an assessment described
under clause (ii).
``(B) In any case in which the Board finds that an employee
has committed a prohibited personnel practice under paragraph
(8) or (9) of section 2302(b), the Board shall impose
disciplinary action if the Board finds that the activity
protected under paragraph (8) or (9) of section 2302(b) was a
significant motivating factor, even if other factors also
motivated the decision, for the employee's decision to take,
fail to take, or threaten to take or fail to take a personnel
action, unless that employee demonstrates, by preponderance of
evidence, that the employee would have taken, failed to take,
or threatened to take or fail to take the same personnel
action, in the absence of such protected activity.''.
(h) Special Counsel Amicus Curiae Appearance.--Section 1212 of
title 5, United States Code, is amended by adding at the end the
following:
``(h)(1) The Special Counsel is authorized to appear as amicus
curiae in any action brought in a court of the United States related to
any civil action brought in connection with section 2302(b) (8) or (9),
or subchapter III of chapter 73, or as otherwise authorized by law. In
any such action, the Special Counsel is authorized to present the views
of the Special Counsel with respect to compliance with section 2302(b)
(8) or (9) or subchapter III of chapter 77 and the impact court
decisions would have on the enforcement of such provisions of law.
``(2) A court of the United States shall grant the application of
the Special Counsel to appear in any such action for the purposes
described in subsection (a).''.
(i) Judicial Review.--
(1) In general.--Section 7703(b)(1) of title 5, United
States Code, is amended to read as follows:
``(b)(1)(A) Except as provided in subparagraph (B) and paragraph
(2), a petition to review a final order or final decision of the Board
shall be filed in the United States Court of Appeals for the Federal
Circuit. Notwithstanding any other provision of law, any petition for
review must be filed within 60 days after the date the petitioner
received notice of the final order or decision of the Board.
``(B) During the 5-year period beginning on the effective date of
this subsection, a petition to review a final order or final decision
of the Board in a case alleging a violation of paragraph (8) or (9) of
section 2302(b) shall be filed in the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent
jurisdiction as provided under subsection (b)(2).''.
(2) Review obtained by office of personnel management.--
Section 7703(d) of title 5, United States Code, is amended to
read as follows:
``(d)(1) Except as provided under paragraph (2), this paragraph
shall apply to any review obtained by the Director of the Office of
Personnel Management. The Director of the Office of Personnel
Management may obtain review of any final order or decision of the
Board by filing, within 60 days after the date the Director received
notice of the final order or decision of the Board, a petition for
judicial review in the United States Court of Appeals for the Federal
Circuit if the Director determines, in his discretion, that the Board
erred in interpreting a civil service law, rule, or regulation
affecting personnel management and that the Board's decision will have
a substantial impact on a civil service law, rule, regulation, or
policy directive. If the Director did not intervene in a matter before
the Board, the Director may not petition for review of a Board decision
under this section unless the Director first petitions the Board for a
reconsideration of its decision, and such petition is denied. In
addition to the named respondent, the Board and all other parties to
the proceedings before the Board shall have the right to appear in the
proceeding before the Court of Appeals. The granting of the petition
for judicial review shall be at the discretion of the Court of Appeals.
``(2) During the 5-year period beginning on the effective date of
this subsection, this paragraph shall apply to any review relating to
paragraph (8) or (9) of section 2302(b) obtained by the Director of the
Office of Personnel Management. The Director of the Office of Personnel
Management may obtain review of any final order or decision of the
Board by filing, within 60 days after the date the Director received
notice of the final order or decision of the Board, a petition for
judicial review in the United States Court of Appeals for the Federal
Circuit or any court of appeals of competent jurisdiction as provided
under subsection (b)(2) if the Director determines, in his discretion,
that the Board erred in interpreting paragraph (8) or (9) of section
2302(b). If the Director did not intervene in a matter before the
Board, the Director may not petition for review of a Board decision
under this section unless the Director first petitions the Board for a
reconsideration of its decision, and such petition is denied. In
addition to the named respondent, the Board and all other parties to
the proceedings before the Board shall have the right to appear in the
proceeding before the court of appeals. The granting of the petition
for judicial review shall be at the discretion of the Court of
Appeals.''.
(j) Nondisclosure Policies, Forms, and Agreements.--
(1) In general.--
(A) Requirement.--Each agreement in Standard Forms
312 and 4414 of the Government and any other
nondisclosure policy, form, or agreement of the
Government shall contain the following statement:
``These restrictions are consistent with and do not
supersede, conflict with, or otherwise alter the
employee obligations, rights, or liabilities created by
Executive Order No. 12958; section 7211 of title 5,
United States Code (governing disclosures to Congress);
section 1034 of title 10, United States Code (governing
disclosure to Congress by members of the military);
section 2302(b)(8) of title 5, United States Code
(governing disclosures of illegality, waste, fraud,
abuse or public health or safety threats); the
Intelligence Identities Protection Act of 1982 (50
U.S.C. 421 et seq.) (governing disclosures that could
expose confidential Government agents); and the
statutes which protect against disclosure that may
compromise the national security, including sections
641, 793, 794, 798, and 952 of title 18, United States
Code, and section 4(b) of the Subversive Activities Act
of 1950 (50 U.S.C. 783(b)). The definitions,
requirements, obligations, rights, sanctions, and
liabilities created by such Executive order and such
statutory provisions are incorporated into this
agreement and are controlling.''.
(B) Enforceability.--Any nondisclosure policy,
form, or agreement described under subparagraph (A)
that does not contain the statement required under
subparagraph (A) may not be implemented or enforced to
the extent such policy, form, or agreement is
inconsistent with that statement.
(2) Persons other than government employees.--
Notwithstanding paragraph (1), a nondisclosure policy, form, or
agreement that is to be executed by a person connected with the
conduct of an intelligence or intelligence-related activity,
other than an employee or officer of the United States
Government, may contain provisions appropriate to the
particular activity for which such document is to be used. Such
form or agreement shall, at a minimum, require that the person
will not disclose any classified information received in the
course of such activity unless specifically authorized to do so
by the United States Government. Such nondisclosure forms shall
also make it clear that such forms do not bar disclosures to
Congress or to an authorized official of an executive agency or
the Department of Justice that are essential to reporting a
substantial violation of law.
(k) Clarification of Whistleblower Rights for Critical
Infrastructure Information.--Section 214(c) of the Homeland Security
Act of 2002 (6 U.S.C. 133(c)) is amended by adding at the end the
following: ``For purposes of this section a permissible use of
independently obtained information includes the disclosure of such
information under section 2302(b)(8) of title 5, United States Code.''.
(l) Advising Employees of Rights.--Section 2302(c) of title 5,
United States Code, is amended by inserting ``, including how to make a
lawful disclosure of information that is specifically required by law
or Executive order to be kept secret in the interest of national
defense or the conduct of foreign affairs to the Special Counsel, the
Inspector General of an agency, Congress, or other agency employee
designated to receive such disclosures'' after ``chapter 12 of this
title''.
(m) Scope of Due Process.--
(1) Special counsel.--Section 1214(b)(4)(B)(ii) of title 5,
United States Code, is amended by inserting ``, after a finding
that a protected disclosure was a contributing factor,'' after
``ordered if''.
(2) Individual action.--Section 1221(e)(2) of title 5,
United States Code, is amended by inserting ``, after a finding
that a protected disclosure was a contributing factor,'' after
``ordered if''.
(n) Effective Date.--This section and the amendment made by this
section shall take effect 30 days after the date of the enactment of
this Act.
<all>
Introduced in Senate
Read twice and referred to the Committee on Homeland Security and Governmental Affairs.
Sponsor introductory remarks on measure. (CR S1674-1676)
Sponsor introductory remarks on measure. (CR S8368-8370)
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