I 111th CONGRESS 1st Session H. R. 963 IN THE HOUSE OF REPRESENTATIVES February 10, 2009 Mr. Price of North Carolina (for himself, Ms. Schakowsky, Mr. Grijalva, Mr. Hinchey, Mr. McGovern, Mr. McDermott, Ms. Lee of California, and Mr. Miller of North Carolina) introduced the following bill; which was referred to the Select Committee on Intelligence (Permanent Select), and in addition to the Committees on Armed Services and the Judiciary, 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 enhance transparency and accountability within the intelligence community for activities performed under Federal contracts, and for other purposes.

1.

Short title

This Act may be cited as the Transparency and Accountability in Intelligence Contracting Act of 2009.

2.

Prohibition on the use of private contractors for activities involving persons under the custody or control of the United States Government

(a)

Prohibition

Notwithstanding any other provision of law, a covered contract may not be awarded for the performance of any activity described in subsection (b). (b)

Activities

Subsection (a) shall apply to any activity relating to the capture, custody, control, or other pertinent interaction with an individual who is a detainee or prisoner in the custody or under the effective control of the United States Government, including, with regard to such an individual— (1)arrest; (2)interrogation; (3)detention; or (4)transportation or transfer. (c)

Special rule relating to language interpretation

Subsection (b) shall not be construed to include the performance of work related to language interpretation, so long as the work is strictly limited to language interpretation and occurs under the direct supervision of United States Government personnel. (d)

Deadline for compliance

The President shall have six months following the date of the enactment of this Act to ensure compliance with subsection (a).

3.

Annual survey of intelligence community contractors

(a)

In general

Title V of the National Security Act of 1947 (50 U.S.C. 413 et seq.) is amended by inserting after section 506A the following new section:

506B.

Annual contractor personnel level assessments for the intelligence community

(a)

Requirement To provide

The Director of National Intelligence shall, in consultation with the head of the element of the intelligence community concerned, prepare an annual assessment for such element of the intelligence community that assesses such element’s use of private contractors and private contractor personnel. (b)

Schedule

Each assessment required by subsection (a) shall be submitted to the congressional intelligence committees each year along with the budget submitted by the President under section 1105 of title 31, United States Code. (c)

Contents

Each assessment required by subsection (a) submitted during a fiscal year shall contain, at a minimum, the following information for the element of the intelligence community concerned: (1)The total number and costs of contractors funded by the element during the previous fiscal year. (2)The best estimate of the total number of personnel working on the contracts funded by the element during the previous fiscal year. (3)The best estimate of the number and costs of contractors to be funded by the element for the upcoming fiscal year. (4)The proposed numerical and percentage increase or decrease of such costs of contracts as compared to the best estimate of the costs of contracts of the current fiscal year. (5)The proposed numerical and percentage increase or decrease of such costs of contracts as compared to the cost of contracts, and the number of contracts, during the prior 5 fiscal years. (6)A written description of the types of activities being performed by contractors. (7)A list of all contractors that have been the subject of an investigation completed by the Inspector General of any element of the intelligence community during the preceding fiscal year, or are or have been the subject of an investigation by such an Inspector General during the current fiscal year, or are currently or have been during the previous fiscal year the subject of a United States or foreign criminal investigation in connection with activities performed under a contract awarded by any element of the intelligence community, as well as any charges filed in connection with the investigation and the findings or disposition of the investigation. (8)A statement by the Director of National Intelligence that, based on current and projected funding, the element concerned will have sufficient— (A)training resources to support the anticipated scope of contractor activity for the upcoming fiscal year; and (B)resources and infrastructure to support the administration, management, and oversight of the anticipated scope of contractor activity for the upcoming fiscal year.

. (b)

Clerical amendment

The table of contents in the first section of that Act is amended by inserting after the item relating to section 506A the following new item: Sec. 506B. Annual contractor personnel level assessment for the intelligence community. .

4.

Transparency and accountability in intelligence contracting

(a)

Information on activities To be performed

Each covered contract shall require the contractor to provide to the contracting officer for the contract, not later than 5 days after award of the contract, the following information regarding activities performed under the contract: (1)The best estimate of the number of persons to be used to perform such activities. (2)A description of how such persons are trained to carry out tasks specified under the contract relating to such activities. (3)A description of the process used to hire such persons, including the method by which and the extent to which background checks regarding such persons are conducted. (4)A description of each category of activity relating to such functions required by the contract. (5)The best estimate of the number of foreign nationals to be employed under the contract. (b)

Updates

The information provided under subsection (a) shall be updated during contract performance as necessary. (c)

Information on costs

Each covered contract shall include the following requirements: (1)Upon award of the contract, the contractor shall provide to the contracting officer cost estimates of salary, benefits, insurance, materials, logistics, administrative costs, and other costs of carrying out activities under the contract. (2)Before contract closeout (other than closeout of a firm, fixed price contract), the contractor shall provide to the contracting officer a report on the actual costs of carrying out activities under the contract, in the same categories as provided under paragraph (1). (d)

Information To be provided to Congress upon request

The head of each element of the intelligence community shall make available to Congress any information provided under this section upon request by a Member or committee of Congress.

5.

Report on the use of private contractors for intelligence activities

(a)

Requirement for report

Not later than 120 days following the date of the enactment of this Act, the Director of National Intelligence shall submit to Congress a report describing the personal services activities performed by contractors across the intelligence community, the impact of such contractors on the intelligence community workforce, plans for conversion of contractor employment into Government employment, and the accountability mechanisms that govern the performance of such contractors. (b)

Content

(1)

In general

The report submitted under subsection (a) shall include— (A)a description of any relevant regulations or guidance issued by the Director of National Intelligence or the head of an element of the intelligence community relating to minimum standards required regarding the hiring, training, security clearance, and assignment of contract personnel and how those standards may differ from those for Government employees performing substantially similar functions; (B)an identification of contracts where the contractor is providing a substantially similar functions to a Government employee; (C)an assessment of costs incurred or savings achieved by awarding contracts for the performance of such functions referred to in subparagraph (B) instead of using full-time employees of the elements of the intelligence community to perform such functions; (D)an assessment of the appropriateness of using contractors to perform the activities described in paragraph (2); (E)an estimate of the number of contracts, and the number of personnel working under such contracts, related to the performance of activities described in paragraph (2); (F)a comparison of the compensation of contract employees and Government employees performing substantially similar functions; (G)an analysis of the attrition of Government personnel associated with the reliance on contractor positions that provide substantially similar functions; (H)an analysis of accountability mechanisms available to each element of the intelligence community, including regulations and provisions included within services contracts; (I)an analysis of procedures in use in the intelligence community for conducting oversight of contractors to ensure identification and prosecution of criminal violations, financial waste, fraud, or other abuses committed by contractors or contract personnel; and (J)an identification of best practices of accountability mechanisms within services contracts. (2)

Activities

Activities described in this paragraph are the following: (A)Intelligence collection. (B)Intelligence analysis. (C)Covert actions. (D)Conduct of electronic or physical surveillance or monitoring of United States citizens in the United States. (3)

Form

The report required under paragraph (1) shall be submitted in unclassified form, but may include a classified annex.

6.

Definitions

In this Act: (a)

Intelligence community

The term intelligence community has the meaning given the term in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)). (b)

Element of the intelligence community

The term element of the intelligence community means an element of the intelligence community listed in or designated under section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)). (c)

Covered contract

The term covered contract means— (1)a prime contract— (A)with any agency or office that is part of the intelligence community; or (B)with any Federal department or agency if the work performed under the contract will be performed under the direction or supervision of any agency or office that is part of the intelligence community; (2)a subcontract at any tier under any prime contract described in paragraph (1); or (3)a task order issued under a task or delivery order contract entered into by an office or agency referred to in paragraph (1)(A); if the contract, subcontract, or task order is valued at more than $1,000,000 and includes personal services activities to be performed either within or outside the United States.