Study and investigation of wartime contracts and contracting processes in Operation Iraqi Freedom and Operation Enduring Freedom

(a)

Commission on wartime contracting

(1)

Establishment

There is hereby established a commission to be known as the Commission on Wartime Contracting (in this subsection referred to as the Commission). (2)

Membership matters

(A)

Membership

The Commission shall be composed of 8 members, as follows: (i)2 members shall be appointed by the Majority Leader of the Senate, in consultation with the Chairmen of the Committee on Armed Services and the Committee on Homeland Security and Governmental Affairs of the Senate. (ii)2 members shall be appointed by the Speaker of the House of Representatives, in consultation with the Chairmen of the Committee on Armed Services and the Committee on Oversight and Government Reform of the House of Representatives. (iii)1 member shall be appointed by the Minority Leader of the Senate, in consultation with the Ranking Minority Members of the Committee on Armed Services and the Committee on Homeland Security and Governmental Affairs of the Senate. (iv)1 member shall be appointed by the Minority Leader of the House of Representatives, in consultation with the Ranking Minority Member of the Committee on Armed Services and the Committee on Oversight and Government Reform of the House of Representatives. (v)1 member shall be appointed by the Secretary of Defense. (vi)1 member shall be appointed by the Secretary of State. (B)

Deadline for appointments

All appointments to the Commission shall be made not later than 90 days after the date of the enactment of this Act. (C)

Chairman and vice chairman

(i)

Chairman

The chairman of the Commission shall be a member of the Commission selected by the members appointed under clauses (i) and (ii) of subparagraph (A), but only if approved by the vote of a majority of the members of the Commission. (ii)

Vice chairman

The vice chairman of the Commission shall be a member of the Commission selected by the members appointed under clauses (iii) and (iv) of subparagraph (A), but only if approved by the vote of a majority of the members of the Commission. (3)

Duties

(A)

General duties

The Commission shall study and investigate the following matters: (i)Federal agency contracting for the reconstruction of Iraq and Afghanistan. (ii)Federal agency contracting for the logistical support of coalition forces in Operation Iraqi Freedom and Operation Enduring Freedom. (iii)Federal agency contracting for the performance of security and intelligence functions in Operation Iraqi Freedom and Operation Enduring Freedom. (B)

Scope of contracting covered

The Federal agency contracting covered by this paragraph includes contracts entered into both in the United States and abroad for the performance of activities described in subparagraph (A), whether performed in the United States or abroad. (C)

Particular duties

In carrying out the study under this paragraph, the Commission shall assess— (i)the extent and impact of the reliance of the Federal Government on contractors to perform functions (including security, intelligence, and management functions) in Operation Iraqi Freedom and Operation Enduring Freedom; (ii)the performance of the contracts under review, and the mechanisms used to manage the performance of the contracts under review; (iii)the extent of waste, fraud, abuse, or mismanagement under such contracts; (iv)the extent to which those responsible for such waste, fraud, abuse, or mismanagement have been held financially or legally accountable; and (v)the appropriateness of the organizational structure, policies, and practices of the Department of Defense and the Department of State for handling contingency contract management and support. (4)

Reports

(A)

Interim report

Not later than one year after the date of the appointment of all of the members of the Commission under paragraph (2), the Commission shall submit to Congress an interim report on the study carried out under paragraph (3), including the results and findings of the study as of that date. (B)

Other reports

The Commission may from time to time submit to Congress such other reports on the study carried out under paragraph (3) as the Commission considers appropriate. (C)

Final report

Not later than two years after the date of the appointment of all of the members of the Commission under paragraph (2), the Commission shall submit to Congress a report on the study carried out under paragraph (3). The report shall— (i)include the findings of the Commission; (ii)identify lessons learned on the contracting covered by the study; and (iii)include specific recommendations for improvements to be made in— (I)the process for developing contract requirements for wartime contracts and contracts for contingency operations; (II)the process for awarding contracts and task orders for wartime contracts and contracts for contingency operations; (III)the process for managing and providing oversight for the performance of wartime contracts and contracts for contingency operations; (IV)the process for holding contractors and their employees accountable for waste, fraud, abuse, or mismanagement under wartime contracts and contracts for contingency operations; (V)the process for determining which functions are inherently governmental and which functions are appropriate for performance by contractors in an area of combat operations (including an area of a contingency operation), including a determination whether the use of civilian contractors to provide security in an area of combat operations is a function that is inherently governmental; (VI)the organizational structure, policies and practices of the Department of Defense and the Department of State handling contract management and support for wartime contracts and contracts for contingency operations; and (VII)the process by which roles and responsibilities with respect to wartime contracts and contracts for contingency operations are distributed among the various departments and agencies of the Federal Government, and interagency coordination and communication mechanisms associated with wartime contracts and contracts for contingency operations. (5)

Other powers and authorities

(A)

Hearings and evidence

The Commission or, on the authority of the Commission, any subcommittee or member thereof, may, for the purpose of carrying out this subsection— (i)hold such hearings and sit and act at such times and places, take such testimony, receive such evidence, administer such oaths; and (ii)subject to subparagraph (B)(i), require, by subpoena or otherwise, require the attendance and testimony of such witnesses and the production of such books, records, correspondence, memoranda, papers, and documents,

as the Commission or such designated subcommittee or designated member may determine advisable.

(B)

Subpoenas

(i)

Issuance

(I)

In general

A subpoena may be issued under subparagraph (A) only— (aa)by the agreement of the chairman and the vice chairman; or (bb)by the affirmative vote of 5 members of the Commission. (II)

Signature

Subject to subclause (I), subpoenas issued under this subparagraph may be issued under the signature of the chairman or any member designated by a majority of the Commission, and may be served by any person designated by the chairman or by a member designated by a majority of the Commission. (ii)

Enforcement

(I)

In general

In the case of contumacy or failure to obey a subpoena issued under clause (i), the United States district court for the judicial district in which the subpoenaed person resides, is served, or may be found, or where the subpoena is returnable, may issue an order requiring such person to appear at any designated place to testify or to produce documentary or other evidence. Any failure to obey the order of the court may be punished by the court as a contempt of that court. (II)

Additional enforcement

In the case of any failure of any witness to comply with any subpoena or to testify when summoned under authority of subclause (I) or this subclause, the Commission may, by majority vote, certify a statement of fact constituting such failure to the appropriate United States attorney, who may bring the matter before the grand jury for its action, under the same statutory authority and procedures as if the United States attorney had received a certification under sections 102 through 104 of the Revised Statutes of the United States (2 U.S.C. 192 through 194). (C)

Access to information

The Commission may secure directly from the Department of Defense and any other department or agency of the Federal Government any information or assistance that the Commission considers necessary to enable the Commission to carry out the requirements of this subsection. Upon request of the Commission, the head of such department or agency shall furnish such information expeditiously to the Commission. Whenever information or assistance requested by the Commission is unreasonably refused or not provided, the Commission shall report the circumstances to Congress without delay. (D)

Personnel

The Commission shall have the authorities provided in section 3161 of title 5, United States Code, and shall be subject to the conditions set forth in such section, except to the extent that such conditions would be inconsistent with the requirements of this subsection. (E)

Detailees

Any employee of the Federal Government employee may be detailed to the Commission without reimbursement from the Commission, and such detailee shall retain the rights, status, and privileges of his or her regular employment without interruption. (F)

Security clearances

The appropriate departments or agencies of the Federal Government shall cooperate with the Commission in expeditiously providing to the Commission members and staff appropriate security clearances to the extent possible pursuant to existing procedures and requirements, except that no person shall be provided with access to classified information under this section without the appropriate security clearances. (G)

Violations of law

(i)

Referral to attorney general

The Commission may refer to the Attorney General any violation or potential violation of law identified by the Commission in carrying out its duties under this subsection. (ii)

Reports on results of referral

The Attorney General shall submit to Congress a report on each prosecution and conviction that results from a referral made under this subparagraph. (6)

Termination

The Commission shall terminate on the date that is 60 days after the date of the submittal of its final report under paragraph (4)(C). (7)

Contingency operation defined

In this subsection, the term contingency operation has the meaning given that term in section 101 of title 10, United States Code. (b)

Investigation of waste, fraud, abuse, and mismanagement

(1)

In general

The Special Inspector General for Iraq Reconstruction shall, in collaboration with the Inspector General of the Department of Defense, the Inspector General of the Department of State, the Inspector General of the United States Agency for International Development, the Inspector General of the Central Intelligence Agency, the Inspector General of the Defense Intelligence Agency, and the Inspector General of the Office of the Director of National Intelligence and in consultation with the Commission on Wartime Contracting established by subsection (a), conduct a series of audits to identify potential waste, fraud, abuse, or mismanagement in the performance of— (A)Department of Defense contracts and subcontracts for the logistical support of coalition forces in Operation Iraqi Freedom and Operation Enduring Freedom; and (B)Federal agency contracts and subcontracts for the performance of security, intelligence, and reconstruction functions in Operation Iraqi Freedom and Operation Enduring Freedom. (2)

Scope of audits of contracts

Each audit conducted pursuant to paragraph (1)(A) shall focus on a specific contract, task order, or site of performance under a contract or task order and shall examine, at a minimum, one or more of the following issues: (A)The manner in which requirements were developed. (B)The procedures under which the contract or task order was awarded. (C)The terms and conditions of the contract or task order. (D)The contractor's staffing and method of performance, including cost controls. (E)The efficacy of Department of Defense management and oversight, Department of State management and oversight, and United States Agency for International Development management and oversight, including the adequacy of staffing and training of officials responsible for such management and oversight. (F)The flow of information from the contractor to officials responsible for contract management and oversight. (3)

Scope of audits of other contracts

Each audit conducted pursuant to paragraph (1)(B) shall focus on a specific contract, task order, or site of performance under a contract or task order and shall examine, at a minimum, one or more of the following issues: (A)The manner in which the requirements were developed and the contract or task order was awarded. (B)The manner in which the Federal agency exercised control over the contractor's performance. (C)The extent to which operational field commanders are able to coordinate or direct the contractor's performance in an area of combat operations. (D)The extent to which the functions performed were appropriate for performance by a contractor. (E)The degree to which contractor employees were properly screened, selected, trained, and equipped for the functions to be performed. (F)The nature and extent of any incidents of misconduct or unlawful activity by contractor employees. (G)The extent to which any incidents of misconduct or unlawful activity were reported, documented, investigated, and (where appropriate) prosecuted. (4)

Continuation of special inspector general

(A)

In general

Notwithstanding section 3001(o) of the Emergency Supplemental Appropriations Act for Defense and for the Reconstruction of Iraq and Afghanistan, 2004 (Public Law 108–106; 5 U.S.C. App. 8G note), the Office of the Special Inspector General for Iraq Reconstruction shall not terminate until the date that is 60 days after the date of the submittal under paragraph (4)(C) of subsection (a) of the final report of the Commission on Wartime Contracting established by subsection (a). (B)

Reaffirmation of certain duties and responsibilities

Congress reaffirms that the Special Inspector General for Iraq Reconstruction retains the duties and responsibilities in sections 4 of the Inspector General Act of 1978 (5 U.S.C. App. 4; relating to reports of criminal violations to the Attorney General) and section 5 of the Inspector General Act of 1978 (5 U.S.C. App. 5; relating to reports to Congress) as expressly provided in subsections (f)(3) and (i)(3), respectively, of section 3001 of the Emergency Supplemental Appropriations Act for Defense and for the Reconstruction of Iraq and Afghanistan, 2004. (c)

Authorization of appropriations

There is authorized to be appropriated such sums as may be required to carry out the provisions of this section.