[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>