II 111th CONGRESS 2d Session S. 3909 IN THE SENATE OF THE UNITED STATES September 29, 2010 Mr. Wyden (for himself and Mr. Merkley) introduced the following bill; which was read twice and referred to the Committee on Armed Services A BILL To restore accountability and congressional oversight to the defense contracting process.

1.

Short title

This Act may be cited as the Accountability for Defense Contractors Act.

2.

Restoring congressional notification of indemnification

Public Law 85–804 is amended by adding at the end the following new section:

5.

Reports to Congress

(a)

Requirement

If the Department of Defense takes any action under authority of this Act during any year, the Secretary of Defense shall, by March 15 of the succeeding year, submit to Congress a report on all such actions taken by the Department during that preceding year. With respect to actions that involve actual or potential cost to the United States in excess of $1,000,000, the report shall— (1)name the contractor; (2)state the actual cost or estimated potential cost involved; (3)describe the property or services involved; and (4)state further the circumstances justifying the action taken. (b)

Omissions

There may be omitted in a report under subsection (a) any information the disclosure of which would be detrimental to the national security, if the Secretary of Defense provides justification of such omission to the relevant congressional committees.

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3.

Prohibition of indemnification for contractors in cases involving gross negligence, willful misconduct, or lack of good faith by contractors

Public Law 85–804, as amended by section 2, is further amended by adding at the end the following new section:

6.

Prohibition of indemnification in certain cases

(a)

In general

A contractor of the Department of Defense shall not be indemnified for— (1)government claims against the contractor (other than those arising through subrogation); (2)a claim, loss, or damage caused by gross negligence, willful misconduct, or lack of good faith on the part of any of the contractor’s principal officials (as defined by part 52.250–1 of the Federal Acquisition Regulation); or (3)a claim, loss, or damage resulting from an unusually hazardous or nuclear risk not specified in the terms of the contract and discovered on the site where the contract is performed, or that reasonably should have been discovered on the site. (b)

Notification

In the case of an unusually hazardous or nuclear risk referred to in subsection (a)(3), the contractor shall immediately notify the contracting officer of such risk upon discovery or when discovery reasonably should have been made.

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4.

Congressional notification and the loss of indemnification in other cases

(a)

In general

A contract entered into by the Department of Defense under authority that provides for indemnification not authorized by the provisions of law listed in subsection (b) may provide for indemnification of the contractor as the Secretary of Defense determines to be necessary only if— (1)the contract complies with the requirements in section 5 of Public Law 85–804 (as added by section 2), relating to notice to Congress; and (2)the contract complies with the requirements in section 6 of Public Law 85–804 (as added by section 3), relating to a prohibition on indemnification for certain claims and a requirement for notification. (b)

Provisions of law listed

The provisions of laws listed in this subsection are as follows: (1)Section 2354 of title 10, United States Code. (2)The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.).