II Calendar No. 682 111th CONGRESS 2d Session S. 2782 IN THE SENATE OF THE UNITED STATES November 17, 2009 Mrs. McCaskill (for herself, Ms. Collins, Mr. Bennett, Mr. Brown, Mr. Nelson of Florida, Mr. LeMieux, Mr. Casey, Mr. Tester, Mr. Leahy, and Mr. Whitehouse) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs December 9, 2010 Reported by Mr. Lieberman, with an amendment Strike out all after the enacting clause and insert the part printed in italic A BILL To provide personal jurisdiction in causes of action against contractors of the United States performing contracts abroad with respect to members of the Armed Forces, civilian employees of the United States, and United States citizen employees of companies performing work for the United States in connection with contractor activities, and for other purposes.
1.
Short title
This Act may be cited as the Lieutenant Colonel Dominic Rocky Baragona Justice for American Heroes Harmed by Contractors Act.
2.
Debarment or suspension of United States Government contractors for evasion of process or failure to appear in actions in connection with Government contracts
(a)
In general
Not later than 90 days after the date of enactment of this Act, the Federal Acquisition Regulatory Council established under section 25(a) of the Office of Federal Procurement Policy Act (41 U.S.C. 421(a)) shall amend the Federal Acquisition Regulation to provide that a contractor with the United States may be debarred or suspended from contracting with the United States if— (1)the contractor evades service of process in any civil action or criminal prosecution brought against the contractor by the United States or a citizen or national of the United States in connection with the performance of the contract; or (2)the contractor refuses or fails to appear before a Federal court in a matter brought against the contractor by the United States or a citizen or national of the United States in connection with the performance of the contract. (b)
Applicability
The amendments to the Federal Acquisition Regulation made under subsection (a) shall apply to any action of a contractor that occurs on or after the effective date of the amendments.
3.
Personal jurisdiction in covered civil actions by members of the Armed Forces, civilian employees of the United States, and United States citizen employees of companies performing work for the United States against entities under United States Government contracts performed abroad
(a)
In general
Not later than 90 days after the date of enactment of this Act, the Federal Acquisition Regulatory Council established under section 25(a) of the Office of Federal Procurement Policy Act (41 U.S.C. 421(a)) shall amend the Federal Acquisition Regulation to require that any covered contract— (1)requires that the contractor consent to personal jurisdiction over the contractor by the Federal courts with respect to any covered civil action, including a covered civil action against 1 or more employees of the contractor for which the contractor may be liable under theories of vicarious liability; (2)specifies that consent to personal jurisdiction under paragraph (1) shall not operate to deprive or terminate personal jurisdiction of the contractor in any court that otherwise has personal jurisdiction under another provision of law; (3)requires the contractor to consent to personal jurisdiction in the United States District Court for the District of Columbia for a covered civil action in which— (A)the events giving rise to the cause of action occurred outside the United States; and (B)personal jurisdiction cannot be established in another Federal court; and (4)if the covered contract has a value of not less than $5,000,000 and was awarded to a contractor that does not maintain an office in the United States, requires that the contractor designate an agent located in the United States for service of process in any covered civil action; and (5)requires that— (A)except as provided in subparagraph (B), any covered civil action shall be analyzed in accordance with the laws of the United States; and (B)the substantive law of the State in which the covered civil action is brought shall be the law applicable to a covered civil action if— (i)the substantive law otherwise applicable to the covered civil action would be the law of the location where the events giving rise to the cause action occurred; and (ii)the location is designated as a hazardous duty zone by the Secretary of Defense. (b)
Applicability
(1)
In general
The amendments to the Federal Acquisition Regulation made under subsection (a) shall apply with respect to any covered contract that is entered into on or after the effective date of the amendments under subsection (a). (2)
Prospective applicability under certain current contracts
For a covered contract that is an indefinite delivery, indefinite quantity contract or blanket purchase agreement in effect on the effective date of the amendments to the Federal Acquisition Regulation made under subsection (a), the amendments to the Federal Acquisition Regulation made under subsection (a) shall apply to any task order under the covered contract, including any subcontract of the covered contract, that is made on or after the effective date of the amendments.
4.
Personal jurisdiction for civil or criminal suits brought by the United States Government alleging wrongdoing under United States Government contracts performed abroad
(a)
In general
Not later than 90 days after the date of enactment of this Act, the Federal Acquisition Regulatory Council established under section 25(a) of the Office of Federal Procurement Policy Act (41 U.S.C. 421(a)) shall amend the Federal Acquisition Regulation to require that any covered contract— (1)requires that the contractor consent to personal jurisdiction over the contractor by the Federal courts with respect to any civil action or criminal prosecution brought by the United States alleging wrongdoing associated with the performance of the covered contract; (2)specifies that consent to personal jurisdiction under paragraph (1) shall not operate to deprive or terminate personal jurisdiction of the contractor in any other court that has personal jurisdiction under another provision of law; (3)requires the contractor to consent to personal jurisdiction in the United States District Court for the District of Columbia for a civil action or criminal prosecution described in paragraph (1) in which— (A)the events giving rise to the cause of action occurred outside the United States; and (B)personal jurisdiction cannot be established in another Federal court; and (4)if the covered contract has a value of not less than $5,000,000 and was awarded to a contractor that does not maintain an office in the United States, requires that the contractor designate an agent located in the United States for service of process in any civil action or criminal prosecution described in paragraph (1). (b)
Applicability
(1)
In general
The amendments to the Federal Acquisition Regulation made under subsection (a) shall apply with respect to any covered contract that is entered into on or after the effective date of the amendments under subsection (a). (2)
Prospective applicability under certain current contracts
For a covered contract that is an indefinite delivery, indefinite quantity contract or blanket purchase agreement in effect on the effective date of the amendments to the Federal Acquisition Regulation made under subsection (a), the amendments to the Federal Acquisition Regulation made under subsection (a) shall apply to any task order under the covered contract, including any subcontract of the covered contract, that is made on or after the effective date of the amendments.
5.
Savings clause
Nothing in this Act shall be construed to limit any cause of action or remedy under any other provision of law.
6.
Definitions
In this Act: (1)
Contractor
The term contractor, with respect to a contract, includes the contractor under the contract, any subcontractor under the contract, any subordinate contractor under the contract, any subsidiary, parent company, or successor entity of the contractor formed to act as a successor in interest of the contractor, and any employee thereof performing work under or in connection with the contract. (2)
Covered civil action
The term covered civil action means a civil action alleging a rape or sexual assault of or serious bodily injury to a member of the Armed Forces of the United States, civilian employee of the United States, or employee of a company performing work for the United States who is a citizen or national of the United States. (3)
Covered contract
The term covered contract— (A)means a contract, grant, or cooperative agreement— (i)for work to be performed outside the United States that is awarded or entered into by the United States (including any executive department, independent establishment, or agency thereof); and (ii)with a value of not less than $1,000,000; and (B)includes any subcontract or subordinate contract, grant, or cooperative agreement under a contract, grant, or cooperative agreement described in subparagraph (A). (4)
Rape
The term rape means conduct that would violate section 920(a) of title 10, United States Code (article 120(a) of the Uniform Code of Military Justice), if the conduct was committed by a person subject to chapter 47 of title 10, United States Code (the Uniform Code of Military Justice). (5)
Serious bodily injury
The term serious bodily injury has the meaning given that term in section 1365 of title 18, United States Code. (6)
Sexual assault
The term sexual assault means conduct that would violate section 920(c), (h), or (m) of title 10, United States Code (article 120(c), (h), or (m) of the Uniform Code of Military Justice), if the conduct was committed by a person subject to chapter 47 of title 10, United States Code (the Uniform Code of Military Justice). (7)
United States
The term United States, in a geographic sense— (A)means the several States and the District of Columbia; and (B)does not include any military installation or facility located outside the area described in subparagraph (A).
1.
Short title
This Act may be cited as the Lieutenant Colonel Dominic Rocky Baragona Justice for American Heroes Harmed by Contractors Act.
2.
Debarment or suspension of United States Government contractors for evasion of process or failure to appear in actions in connection with Government contracts
(a)
In general
Not later than 180 days after the date of enactment of this Act, the Federal Acquisition Regulatory Council established under section 25(a) of the Office of Federal Procurement Policy Act (41 U.S.C. 421(a)) shall amend the Federal Acquisition Regulation to provide that a contractor with the United States may be debarred or suspended from contracting with the United States if— (1)the contractor evades service of process in any civil action or criminal prosecution brought against the contractor by the United States or a citizen or national of the United States in connection with an obligation under the terms of the contract; or (2)the contractor refuses or fails to appear before a Federal court in a matter brought against the contractor by the United States or a citizen or national of the United States in connection with an obligation under the terms of the contract. (b)
Applicability
The amendments to the Federal Acquisition Regulation made under subsection (a) shall apply to any action of a contractor that occurs on or after the effective date of the amendments. (c)
Rule of construction
Nothing in this section shall be construed to limit the ability of a contractor to assert any settled right under the Constitution of the United States.
3.
Personal jurisdiction in covered civil actions by members of the Armed Forces, civilian employees of the United States, and United States citizen employees of companies performing work for the United States against entities under United States Government contracts performed abroad
(a)
In general
Not later than 180 days after the date of enactment of this Act, the Federal Acquisition Regulatory Council established under section 25(a) of the Office of Federal Procurement Policy Act (41 U.S.C. 421(a)) shall amend the Federal Acquisition Regulation to require that any covered contract— (1)requires that the contractor consent to personal jurisdiction over the contractor in accordance with paragraphs (3) through (5) with respect to any covered civil action, including a covered civil action against 1 or more employees of the contractor for which the contractor may be liable under theories of vicarious liability; (2)specifies that consent to personal jurisdiction under paragraph (1) shall not operate to deprive or terminate personal jurisdiction of the contractor in any court that otherwise has personal jurisdiction under another provision of law; (3)requires the contractor to consent to personal jurisdiction in the United States District Court for the District of Columbia for a covered civil action in which— (A)the events giving rise to the cause of action occurred outside the United States; and (B)personal jurisdiction cannot be established in another Federal court; and (4)if the covered contract was awarded to a contractor that does not maintain an office in the United States, requires that the contractor designate an agent located in the United States for service of process in any covered civil action; and (5)requires that— (A)except as provided in subparagraph (B), any covered civil action shall be analyzed in accordance with the laws of the United States; and (B)the substantive law of the State (including the District of Columbia) in which the covered civil action is brought shall be the law applicable to a covered civil action if— (i)the substantive law otherwise applicable to the covered civil action would be the law of the location where the events giving rise to the cause action occurred; and (ii)the location is designated as a hazardous duty zone by the Secretary of Defense. (b)
Applicability
The amendments to the Federal Acquisition Regulation made under subsection (a) shall apply with respect to any covered contract that is entered into on or after the effective date of the amendments under subsection (a).
4.
Personal jurisdiction for actions brought by the United States Government alleging wrongdoing under United States Government contracts performed abroad
(a)
In general
Not later than 180 days after the date of enactment of this Act, the Federal Acquisition Regulatory Council established under section 25(a) of the Office of Federal Procurement Policy Act (41 U.S.C. 421(a)) shall amend the Federal Acquisition Regulation to require that any covered contract— (1)requires that the contractor consent to personal jurisdiction over the contractor by the Federal courts with respect to any action brought by the United States alleging wrongdoing associated with the performance of the covered contract; (2)specifies that consent to personal jurisdiction under paragraph (1) shall not operate to deprive or terminate personal jurisdiction of the contractor in any other court that has personal jurisdiction under another provision of law; (3)requires the contractor to consent to personal jurisdiction in the United States District Court for the District of Columbia for any action described in paragraph (1) in which— (A)the events giving rise to the cause of action occurred outside the United States; and (B)personal jurisdiction cannot be established in another Federal court; and (4)if the covered contract was awarded to a contractor that does not maintain an office in the United States, requires that the contractor designate an agent located in the United States for service of process in any action described in paragraph (1). (b)
Applicability
The amendments to the Federal Acquisition Regulation made under subsection (a) shall apply with respect to any covered contract that is entered into on or after the effective date of the amendments under subsection (a). (c)
Rule of construction
Nothing in this section shall be construed to limit any other jurisdictional basis for a civil action against or criminal prosecution of a contractor.
5.
Savings clause
Nothing in this Act shall be construed to limit any cause of action or remedy under any other provision of law.
6.
Definitions
In this Act: (1)
Contractor
The term contractor, with respect to a contract, includes the contractor under the contract, any subcontractor under the contract, any subordinate contractor under the contract, any subsidiary, parent company, or successor entity of the contractor formed to act as a successor in interest of the contractor, and any employee thereof performing work under or in connection with the contract. (2)
Covered civil action
The term covered civil action means a civil action alleging a rape or sexual assault of or serious bodily injury to a member of the Armed Forces of the United States, civilian employee of the United States, or employee of a company performing work arising out of the performance of the covered contract for the United States who is a citizen or national of the United States. (3)
Covered contract
The term covered contract— (A)means a contract— (i)for work to be performed outside the United States that is awarded or entered into by the United States (including any executive department, independent establishment, or agency thereof); and (ii)with a value of not less than $5,000,000; and (B)includes any subcontract or subordinate contract under a contract described in subparagraph (A). (4)
Rape
The term rape means conduct that would violate section 920(a) of title 10, United States Code (article 120(a) of the Uniform Code of Military Justice), if the conduct was committed by a person subject to chapter 47 of title 10, United States Code (the Uniform Code of Military Justice). (5)
Serious bodily injury
The term serious bodily injury has the meaning given that term in section 1365 of title 18, United States Code. (6)
Sexual assault
The term sexual assault means conduct that would violate section 920(c), (h), or (m) of title 10, United States Code (article 120(c), (h), or (m) of the Uniform Code of Military Justice), if the conduct was committed by a person subject to chapter 47 of title 10, United States Code (the Uniform Code of Military Justice). (7)
United States
The term United States, in a geographic sense— (A)means the several States and the District of Columbia; and (B)does not include any military installation or facility located outside the area described in subparagraph (A).
December 9, 2010 Reported with an amendment