Never Contract With the Enemy Act - States that it shall be the policy of the United States that executive agencies shall not contract with the enemy or with any person or entity that provides funds received under a contract, grant, or cooperative agreement to an enemy of the United States or that otherwise supports those actively opposing the United States or coalition forces in a contingency operation. Authorizes the termination or nullification of contracts, grants, and cooperative agreements valued in excess of $20,000 (currently, $100,000) with persons or entities identified as enemies of the United States.
Requires the Secretary of Defense (DOD) and each senior procurement executive to use available intelligence to identify persons and entities who receive U.S. funds through contracts, grants, and cooperative agreements and who are: (1) providing such funds to an enemy or to a person or entity who is actively supporting an enemy of the United States, or (2) otherwise supporting those who are actively opposing U.S. or coalition forces in a contingency operation.
Requires the Secretary and the Administrator for Federal Procurement Policy to jointly carry out a program for providing information to senior procurement executives and commanders of the geographic combatant commands relating to persons or entities who may be providing funding under contracts, grants, or cooperative agreements to enemies of the United States.
[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1688 Introduced in House (IH)]
113th CONGRESS
1st Session
H. R. 1688
To prohibit contracting with the enemy.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
April 23, 2013
Ms. Shea-Porter introduced the following bill; which was referred to
the Committee on Oversight and Government Reform, and in addition to
the Committee on Armed Services, for a period to be subsequently
determined by the Speaker, in each case for consideration of such
provisions as fall within the jurisdiction of the committee concerned
_______________________________________________________________________
A BILL
To prohibit contracting with the enemy.
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 ``Never Contract With the Enemy Act''.
SEC. 2. PROHIBITION ON CONTRACTING WITH THE ENEMY.
(a) Statement of Policy.--It shall be the policy of the United
States that executive agencies shall not contract with the enemy or
with a person or entity that has been identified as providing funds
received under a contract, grant, or cooperative agreement directly or
indirectly to an enemy of the United States or otherwise supporting
those who are actively opposing the United States or coalition forces
in a contingency operation.
(b) Authority To Terminate or Void Contracts, Grants, and
Cooperative Agreements and To Restrict Future Award.--
(1) In general.--Not later than 30 days after the date of
the enactment of this Act, the Federal Acquisition Regulation
shall be revised to provide that, upon notice from a Senior
Procurement Executive or the commander of a geographic
combatant command under subsection (e)(3), the head of
contracting activity of an executive agency may do the
following:
(A) If the notice is that a person or entity has
been identified as providing funds received under a
contract, grant, or cooperative agreement of the
executive agency directly or indirectly to an enemy of
the United States or a person or entity who is actively
supporting an enemy of the United States or otherwise
supporting those who are actively opposing United
States or coalition forces in a contingency operation--
(i) either--
(I) terminate for default the
contract, grant, or cooperative
agreement; or
(II) void the contract, grant, or
cooperative agreement in whole or in
part; and
(ii) restrict the future award to the
person or entity so identified of contracts,
grants, or cooperative agreements of the
executive agency.
(B) If the notice is that the person or entity has
failed to exercise due diligence to ensure that none of
the funds received under a contract, grant, or
cooperative agreement of the executive entity are
provided directly or indirectly to an enemy of the
United States or a person or entity who is actively
supporting an enemy of the United States or otherwise
supporting those who are actively opposing United
States or coalition forces in a contingency operation,
terminate for default the contract, grant, or
cooperative agreement.
(2) Treatment as void.--For purposes of this section:
(A) A contract, grant, or cooperative agreement
that is void is unenforceable as contrary to public
policy.
(B) A contract, grant, or cooperative agreement
that is void in part is unenforceable as contrary to
public policy with regard to a segregable task or
effort under the contract, grant, or cooperative
agreement.
(c) Contract Clause.--
(1) In general.--Not later than 30 days after the date of
the enactment of this Act, the Federal Acquisition Regulation
shall be revised to require that--
(A) the clause described in paragraph (2) shall be
included in each covered contract, grant, and
cooperative agreement of an executive agency that is
awarded on or after the date of the enactment of this
Act; and
(B) to the maximum extent practicable, each covered
contract, grant, and cooperative agreement of an
executive agency that is awarded before the date of the
enactment of this Act shall be modified to include the
clause described in paragraph (2), other than the
matter provided for in subparagraph (A) of that
paragraph.
(2) Clause described.--The clause described in this
paragraph is a clause that--
(A) requires the contractor, or the recipient of
the grant or cooperative agreement, to certify in
connection with entry into the contract, grant, or
cooperative agreement that the contractor or recipient,
as the case may be, has never knowingly provided funds
directly or indirectly to an enemy of the United States
or a person or entity who is actively supporting an
enemy of the United States or otherwise knowingly
supported those who are actively opposing United States
or coalition forces in a contingency operation;
(B) requires the contractor, or the recipient of
the grant or cooperative agreement, to exercise due
diligence to ensure that none of the funds received
under the contract, grant, or cooperative agreement are
provided directly or indirectly to an enemy of the
United States or a person or entity who is actively
supporting an enemy of the United States or otherwise
supporting those who are actively opposing United
States or coalition forces in a contingency operation;
and
(C) notifies the contractor, or the recipient of
the grant or cooperative agreement, of the authority of
the head of the contracting activity to terminate or
void the contract, grant, or cooperative agreement, in
whole or in part, as provided in subsection (b).
(3) Covered contract, grant, or cooperative agreement.--In
this subsection, the term ``covered contract, grant, or
cooperative agreement'' means a contract, grant, or cooperative
agreement with an estimated value in excess of $20,000.
(d) Requirements Following Contract Actions.--Not later than 30
days after the date of the enactment of this Act, the Federal
Acquisition Regulation shall be revised as follows:
(1) To require that any head of contracting activity taking
an action under subsection (b) to terminate, void, or restrict
a contract, grant, or cooperative agreement notify in writing
the contractor or recipient of the grant or cooperative
agreement, as applicable, of the action.
(2) To permit, in such manner as the Federal Acquisition
Regulation as so revised shall provide, the contractor or
recipient of a grant or cooperative agreement subject to an
action taken under subsection (b) to terminate or void the
contract, grant, or cooperative agreement, as the case may be,
an opportunity to contest the action within 30 days of receipt
of notice of the action.
(e) Identification of Supporters of the Enemy.--
(1) Identification.--Not later than 30 days after the date
of the enactment of this Act, the Secretary of Defense and each
Senior Procurement Executive shall carry out a program to use
available intelligence (including information made available
pursuant to subsection (g)(1)) to--
(A) either--
(i) in the case of the geographic combatant
commands, review persons and entities who
receive United States funds through contracts,
grants, and cooperative agreements performed
for such commands in their areas of
responsibility; or
(ii) in the case of the Senior Procurement
Executives, review persons and entities who
receive United States funds through contracts,
grants, and cooperative agreements performed
for their agencies; and
(B) identify any such persons and entities who are
providing funds received under a contract, grant, or
cooperative agreement of an executive agency directly
or indirectly to an enemy of the United States or a
person or entity who is actively supporting an enemy of
the United States or otherwise supporting those who are
actively opposing United States or coalition forces in
a contingency operation.
(2) Discharge by dod through commanders of combatant
commands.--The Secretary of Defense shall carry out the program
required by paragraph (1) through the commanders of the
geographic combatant commands.
(3) Notification of contracting activities.--If a Senior
Procurement Executive or the commander of a geographic
combatant command, acting pursuant to a program required by
paragraph (1), identifies a person or entity as actively
supporting an enemy of the United States or otherwise
supporting those who are actively opposing United States or
coalition forces in a contingency operation, the Senior
Procurement Executive or commander, as the case may be, shall
notify the heads of contracting activities of the executive
agencies in writing of such identification. Any written
notification pursuant to this paragraph shall be made in
accordance with procedures established to implement the
revisions to the Federal Acquisition Regulation required by
this section.
(4) Annual review.--As part of the programs required by
paragraph (1), the Senior Procurement Executives and the
commanders of the geographic combatant commands shall, on an
annual basis, review the lists of persons and entities
previously covered by a notice under paragraph (3) as having
been identified pursuant to paragraph (1)(B) in order to
determine whether or not such persons and entities continue to
warrant identification pursuant to paragraph (1)(B). If a
Senior Procurement Executive or commander determines pursuant
to such a review that a person or entity no longer warrants
identification pursuant to paragraph (1)(B), the Senior
Procurement Executive or commander, as the case may be, shall
notify the heads of contracting activities of the executive
agencies in writing of such determination.
(5) Protection of classified information.--Classified
information relied upon to make an identification in accordance
with this subsection may not be disclosed to a contractor or a
recipient of a grant or cooperative agreement with respect to
which an action is taken pursuant to the authority provided in
subsection (b), or to their representatives, in the absence of
a protective order issued by a court of competent jurisdiction
established under Article I or Article III of the Constitution
of the United States that specifically addresses the conditions
upon which such classified information may be so disclosed.
(f) Delegation of Certain Responsibilities.--
(1) Responsibility to identify and provide notice.--A
Senior Procurement Executive may delegate the responsibilities
in paragraphs (1), (3), and (4) of subsection (e) to the
designated deputy of such Executive. The commander of a
geographic combatant command may delegate the responsibilities
in such paragraphs to the deputy commander of that combatant
command. Any delegation of responsibilities under this
paragraph shall be made in writing.
(2) Nondelegation of responsibility for contract actions.--
The authority provided by subsection (b) to terminate, void, or
restrict contracts, grants, and cooperative agreements may not
be delegated below the level of head of contracting activity.
(g) Additional Responsibilities of Executive Agencies.--
(1) Dissemination of information on supporters of the
enemy.--The Secretary of Defense and the Administrator for
Federal Procurement Policy shall jointly carry out a program
through which the contracting activities of the executive
agencies may provide information to Senior Procurement
Executives and the commanders of the geographic combatant
commands relating to persons or entities who may be providing
funds received under contracts, grants, or cooperative
agreements of the executive agencies directly or indirectly to
an enemy of the United States or a person or entity who is
actively supporting an enemy of the United States or otherwise
supporting those who are actively opposing United States or
coalition forces in a contingency operation. The program shall
be designed to facilitate and encourage the sharing of
information between executive agencies and the geographic
combatant commands.
(2) Inclusion of information on contract actions in
fapiis.--Upon the termination, voiding, or restriction of a
contract, grant, or cooperative agreement of an executive
agency under subsection (b), the head of contracting activity
of the executive agency shall provide for the inclusion in the
Federal Awardee Performance and Integrity Information System
(FAPIIS), or other formal system of records on contractors or
entities, of appropriate information on the termination,
voiding, or restriction, as the case may be, of the contract,
grant, or cooperative agreement.
(3) Reports.--The head of contracting activity that
receives a notice pursuant to subsection (e)(3) shall submit to
the Senior Procurement Executives and the commanders of the
geographic combatant commands a report on the action, if any,
taken by the head of contracting activity pursuant to
subsection (b), including a determination not to terminate,
void, or restrict the contract, grant, or cooperative agreement
as otherwise authorized by subsection (b).
(h) Reports.--
(1) In general.--Not later than March 1 each year, the
Secretary of Defense shall, in consultation with the heads of
other executive agencies, submit to the appropriate committees
of Congress a report on the use of the authorities in this
section in the preceding calendar year, including the
following:
(A) For each instance in which an executive agency
exercised the authority to terminate, void, or restrict
a contract, grant, and cooperative agreement pursuant
to subsection (b), the following:
(i) The executive agency taking such
action.
(ii) An explanation of the basis for the
action taken.
(iii) The value of the contract, grant, or
cooperative agreement voided or terminated.
(iv) The value of all contracts, grants, or
cooperative agreements of the executive agency
in force with the person or entity concerned at
the time the contract, grant, or cooperative
agreement was terminated or voided.
(B) For each instance in which an executive agency
did not exercise the authority to terminate, void, or
restrict a contract, grant, and cooperative agreement
pursuant to subsection (b) as requested pursuant to
subsection (e)(3), the following:
(i) The executive agency concerned.
(ii) An explanation why the action was not
taken.
(2) Form.--Any report under this subsection may be
submitted in classified form.
(i) Other Definitions.--In this section:
(1) The term ``appropriate committees of Congress'' means--
(A) the Committee on Armed Services, the Committee
on Homeland Security and Governmental Affairs, and the
Committee on Appropriations of the Senate; and
(B) the Committee on Armed Services, the Committee
on Oversight and Government Reform, and the Committee
on Appropriations of the House of Representatives.
(2) The term ``combatant command'' means a command
established pursuant to chapter 6 of title 10, United States
Code.
(3) The term ``contingency operation'' has the meaning
given that term in section 101(a)(13) of title 10, United
States Code.
(4) The term ``enemy of the United States'' means any of
the following:
(A) Any person or organization determined by the
Secretary of Defense or the Secretary of State to be
hostile to United States forces or interests or
providing support to any person or organization hostile
to United States forces or interests during the time of
a declared war, peacekeeping operation, or other
military or contingency operation.
(B) Any organization designated as a terrorist
organization under section 219(a) of the Immigration
and Nationality Act (8 U.S.C. 1189(a)).
(5) The term ``executive agency'' has the meaning given
that term in section 133 of title 41, United States Code.
(6) The term ``head of contracting activity'' has the
meaning given that term in subpart 601 of part 1 of the Federal
Acquisition Regulation.
(7) The term ``Senior Procurement Executive'' has the
meaning given that term in section 1702 of title 41, United
States Code.
(j) Coordination With Current Authorities Applicable to CENTCOM.--
(1) Repeal of superseded authority.--Effective 30 days
after the date of the enactment of this Act, section 841 of the
National Defense Authorization Act for Fiscal Year 2012 (Public
Law 112-81; 125 Stat. 1510; 10 U.S.C. 2302 note) is repealed.
(2) Use of superseded authorities in discharge of
requirements.--In providing for the discharge of the
requirements of this section by the Department of Defense, the
Secretary of Defense may use and modify for that purpose
requirements and procedures established by the Secretary for
purposes of the discharge of the requirements of section 841 of
the National Defense Authorization Act for Fiscal Year 2012.
<all>
Introduced in House
Introduced in House
Referred to the Committee on Oversight and Government Reform, and in addition to the Committee on Armed Services, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on Oversight and Government Reform, and in addition to the Committee on Armed Services, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
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