Short title

This Act may be cited as the

Lieutenant Colonel Dominic Rocky Baragona Justice for American Heroes Harmed by Contractors Act

Findings

Congress makes the following findings: (1)On May 19, 2003, Lieutenant Colonel Dominic Rocky Baragona, United States Army, was killed in Safwan, Iraq, when his vehicle was struck by a truck being driven by a driver employed by the Kuwait & Gulf Link Transport Company, a Kuwait company under multiple contracts with the Department of Defense to provide logistics services in support of the United States military in Kuwait and Iraq, after the truck struck a pile of debris, jacknifed, and crossed two lanes of traffic. (2)Lieutenant Colonel Baragona, who was born on June 14, 1960, and commissioned into the United States Army after graduating from the United States Military Academy in 1982, was serving as a logistician in III Corps Artillery in Iraq at the time of his death, and is now forever at rest in Arlington National Cemetery. (3)Lieutenant Colonel Baragona was, at the time of his death, the highest-ranking United States military officer to be killed in Iraq following the initial invasion of Iraq in March 2003 and since the liberation of Kuwait by United States forces. (4)In November 2007, the United States District Court for the Northern District of Georgia entered a default judgment against Kuwait & Gulf Link Transport Company and ordered that $4,900,000 be paid in damages for the death of Lieutenant Colonel Baragona. (5)In the legal proceeding brought against Kuwait & Gulf Link Transport Company in United States district court, Kuwait & Gulf Link Transport Company knowingly chose not to appear to answer for the actions of its employee and similarly acted inconsistently with the conduct of a responsible party when it evaded or refused service of process in the claim even when service of process was issued directly by the court, only appearing in the action after the Department of Defense had issued a request for information letter, which was a follow-up letter to an Army notice for Kuwait & Gulf Link Transport Company to show cause why the company should not be debarred for its refusal to accept service of process in the Baragona civil litigation, requesting information regarding the company’s intent to either honor the court’s final judgment against it or to otherwise respond to the judgment. A failure to respond to the request for information would have jeopardized the company’s capacity to continue to perform as a contractor of the United States Government. (6)Kuwait & Gulf Link Transport Company has stated that it neither evaded nor refused service of process in the civil litigation, asserting that the initial and multiple attempts at service of process made in accordance with international law via certified international mail courier did not comply with Kuwait law. Service of process was ultimately executed in accordance with Kuwait law via the Kuwait Ministry of Justice. The Federal district court overseeing the case ruled that service of process had been properly executed prior to entering the default judgment against Kuwait & Gulf Link Transport Company. Kuwait & Gulf Link Transport Company has not disputed in court that service of process was properly executed and thereby has consented to the court’s determination that service of process in the case was proper. (7)Kuwait & Gulf Link Transport Company has since made an appearance in the action only to dispute the court’s personal jurisdiction over it and to request the dismissal of the judgment against it and has not contested in court that its negligence was the cause of Lieutenant Colonel Baragona’s wrongful death. But for Kuwait & Gulf Link Transport Company’s fear of debarment, it may not have entered the action to answer for its negligence. (8)The Honorable William S. Duffey, Jr., United States District Judge in the Northern District of Georgia, has described the conduct of Kuwait & Gulf Link Transport Company as evasive and disruptive to a significant jurisdictional issue, has further described the conduct of Kuwait & Gulf Link Transport Company as ghastly, has questioned whether Kuwait & Gulf Link Transport Company appreciate[s] the sacrifice of the citizens and the men of our military, and has further questioned why the company would not compensate the Baragona family when an employee of the company apparently by negligence, has caused the death and caused damages to another person and when the company has the wherewithal to compensate [the] victims of [the] negligence. (9)In March 2009, the Baragona family sought to amicably resolve their claim against Kuwait & Gulf Link Transport Company through court appointed mediation. Kuwait & Gulf Link Transport Company formally declined to join in or consent to the Baragona's request for court appointed mediation. (10)Kuwait & Gulf Link Transport Company is a foreign-owned contractor of the United States Government whose earnings under United States Government contracts exceed $45,000,000 from prime contracts and are reported to exceed $100,000,000 from subcontracts. (11)In a special advertising section of the New York Times, the Chairman of Kuwait & Gulf Link Holding Company, a separate but related legal entity, described the business of Kuwait & Gulf Link Holding Company with the United States Armed Forces as follows: [The] U.S. military is one of our largest customers today. We have been working with [the] U.S. military since 1992. Immediately after [the] liberation of Kuwait, we established our business again, and we started working with them, and have continued now, for over 15 years. (12)Kuwait & Gulf Link Transport Company has asserted that it had insurance for its operations in Iraq at the time of the death of Lieutenant Colonel Baragona, such insurance having been a requirement under its contracts and subcontracts with the Department of Defense. However, it has failed to rely on that insurance to address the wrongful death claim of the Baragona family, which appears inconsistent with its claim of insurance coverage and is unjust to the Baragona family. (13)The Government of Kuwait first failed to respond to, and then declined to act on, requests by members of Congress that it instruct Kuwait & Gulf Link Transport Company, its corporate citizen, to conduct itself honorably with respect to the claim of the Baragona family. (14)Kuwait & Gulf Link Transport Company, the Kuwait Government, and others should act honorably to deliver justice to the Baragona family and to honor the service and sacrifice of Lieutenant Colonel Dominic Baragona. (15)The Baragona family has nobly sought justice in the wrongful death of their son and brother but has faced many obstacles from Kuwait & Gulf Link Transport Company and others in their efforts. (16)Members of the Armed Forces, civilian employees of the United States Government, and United States citizen employees of companies performing work for the United States Government, or, in the event of their death, their family members, should be able to seek redress from Federal contractors in a United States Federal court when the member of the Armed Forces, civilian employee, or United States citizen employee experiences serious bodily injury because of the negligent performance by the contractor of its work for the United States Government.

In personam jurisdiction in civil suits with respect to serious bodily injuries of 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

The Director of the Office of Management and Budget shall amend the Federal Acquisition Regulation to include in the regulation with respect to any contract for work to be performed outside the United States that is approved and financed by the United States Government, or any executive department, independent establishment, or agency thereof, or any subcontract or subordinate contract under such a contract, the following: (1)A requirement that the contractor consent to in personam jurisdiction over the contractor by the Federal courts of the United States with respect to any suit alleging a serious bodily injury of a member of the Armed Forces, civilian employee of the United States Government, or United States citizen employee of a company performing work for the United States Government, including a suit for negligence against one or more employees of the contractor for which the contractor may be liable under theories of vicarious liability. (2)A clause specifying that consent to in personam jurisdiction under paragraph (1) shall not operate to deprive or terminate in personam jurisdiction as described in that paragraph in any other court that otherwise has in personam jurisdiction as described in that paragraph under applicable law. (3)A requirement that, where a cause of action in a suit described in paragraph (1) arises from an act or omission occurring outside the United States, in personam jurisdiction in a suit covered by paragraph (1)— (A)may lie either— (i)in the district court of the United States of the legal residence of the injured person, deceased, or heirs of the deceased, or in the place of the estate established for the deceased; or (ii)in the district court of the United States of the command issuing the contract; or (B)if in personam jurisdiction cannot be established in a district court of the United States under subparagraph (A), shall lie in the United States District Court for the District of Columbia. (4)In the case of a contract covered by this section with a value of $5,000,000 or more and awarded to a contractor that does not maintain an office in the United States, a requirement that the contractor designate an agent located in the United States for service of process in any suit described in paragraph (1). (5)A requirement that— (A)any suit described in paragraph (1) shall be analyzed in accordance with the substantive laws of the United States; and (B)if pursuant to such requirement the law applicable to such suit is the law of the location where the cause of such suit occurred and the location is designated as a hazardous duty zone by the Department of Defense, the tort law of the State in which such suit is brought shall be the law applicable to such case rather than the law of the location where the cause of such suit occurred. (b)

Serious bodily injury defined

In subsection (a), the term serious bodily injury means bodily injury which involves— (1)death or a substantial risk of death; (2)extreme physical pain; (3)protracted and obvious disfigurement; or (4)protracted loss or impairment of the function of a bodily member, organ, or mental faculty. (c)

Effective date

The amendments to the Federal Acquisition Regulation made pursuant to subsection (a) shall take effect on such date as the Director shall specify, but not later than 90 days after the date of the enactment of this Act. (d)

Applicability

(1)

In general

The amendments to the Federal Acquisition Regulation made pursuant to subsection (a) shall apply with respect to any contract covered by that subsection that is entered into on or after the effective date of such amendments. (2)

Prospective applicability under certain current contracts

(A)

Indefinite delivery, indefinite quantity contracts

In the case of an indefinite delivery, indefinite quantity contract in effect as of the effective date of the amendments to the Federal Acquisition Regulation made pursuant to subsection (a), the amendments to the Federal Acquisition Regulation made pursuant to subsection (a) shall apply to any task order under such contract, or any subcontract of such contract, that is made on or after the effective date of such amendments. (B)

Modifications of current contracts

In the case of any contract or subcontract in effect as of the effective date of the amendments to the Federal Acquisition Regulation made pursuant to subsection (a) that is modified after the effective date of such amendments, the amendments to the Federal Acquisition Regulation made pursuant to subsection (a) shall apply with respect to any modification of such contract or subcontract after the effective date of such amendments. (3)

Certain other contracts

In any civil action commenced during the period beginning on September 11, 2001, and ending on the date of the enactment of this Act to which the requirement in subsection (a)(1) would have applied if such subsection had been in effect during such period, the contractor shall consent to the jurisdiction of the Federal courts of the United States in such action as a condition of— (A)entering into any contract with the United States Government on or after the date of the enactment of this Act; or (B)receiving any payment from the United States Government for performing any activity under a contract with the United States Government on or after the date of the enactment of this Act. (4)

Additional definition of contractor

For purposes of paragraph (3), the term contractor— (A)shall have the meaning given that term in section 6(1); and (B)shall also include any subsidiary, parent company, or successor entity of a contractor formed to act as a successor in interest of a contractor for United States Government contracting purposes.

In personam jurisdiction for civil or criminal suits brought by the United States Government alleging wrongdoing under United States Government contracts performed abroad

(a)

In general

Effective date

Applicability

(1)

In general

Prospective applicability under certain current contracts

(A)

Indefinite delivery, indefinite quantity contracts

Modifications of current contracts

Certain other contracts

In any civil or criminal action commenced during the period beginning on September 11, 2001, and ending on the date of the enactment of this Act to which the requirement in subsection (a)(1) would have applied if such subsection had been in effect during such period, the contractor shall consent to the jurisdiction of the Federal courts of the United States in such action as a condition of— (A)entering into any contract with the United States Government on or after the date of the enactment of this Act; or (B)receiving any payment from the United States Government for performing any activity under a contract with the United States Government on or after the date of the enactment of this Act. (4)

Additional definition of contractor

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

The Director of the Office of Management and Budget shall amend the Federal Acquisition Regulation to provide that a contractor of the United States Government, whether a United States company or a foreign company, may be debarred or suspended from contracting with the United States Government under circumstances as follows: (1)If the contractor evades service of process in any suit brought against the contractor by the United States Government or a citizen or national of the United States in connection with the contractor's performance of a contract with the United States Government. (2)If the contractor refuses or fails to appear before a Federal court of the United States in a matter brought against the contractor by the United States Government or a citizen or national of the United States in connection with the contractor’s performance of a contract with the United States Government. (b)

Applicability

The amendment to the Federal Acquisition Regulation made pursuant to subsection (a) shall apply to any action of a contractor covered by such amendment that occurs on or after the effective date of such amendment.

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, and any employees thereof performing work under or in connection with the contract. (2)

United States

The term United States, in a geographic sense, means the several States and the District of Columbia. The term does not include any military installation or facility located outside the United States, as so defined.