[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 341 Introduced in Senate (IS)]

112th CONGRESS
  1st Session
                                 S. 341

   To require the rescission or termination of Federal contracts and 
            subcontracts with enemies of the United States.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           February 14, 2011

Mr. Brown of Massachusetts (for himself and Ms. Ayotte) introduced the 
 following bill; which was read twice and referred to the Committee on 
               Homeland Security and Governmental Affairs

_______________________________________________________________________

                                 A BILL


 
   To require the rescission or termination of Federal contracts and 
            subcontracts with enemies of the United States.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``No Contracting with the Enemy Act of 
2011''.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Element of the intelligence community.--The term 
        ``element of the intelligence community'' means an element of 
        the intelligence community specified or designated in section 
        3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)).
            (2) Enemy of the united states.--The term ``enemy of the 
        United States'' means any person or organization determined by 
        the Secretary of Defense or the Secretary of State to be 
        hostile to United States forces or interests or providing 
        support to any person or organization hostile to United States 
        forces or interests during the time of a declared war, 
        peacekeeping operation, or other military or contingency 
        operation.
            (3) Executive agency.--The term ``executive agency'' has 
        the meaning given the term in section 133 of title 41, United 
        States Code.
            (4) Federal acquisition regulation.--The term ``Federal 
        Acquisition Regulation'' means the regulation maintained under 
        section 1303(a)(1) of title 41, United States Code.
            (5) Federal contract.--The term ``Federal contract'' means 
        any contract, including any order under a multiple award or 
        indefinite delivery or indefinite quality contract, entered 
        into by an executive agency for the procurement of property or 
        services.

SEC. 3. PROHIBITION ON CONTRACTS WITH ENEMIES.

    (a) In General.--Not later than 60 days after the date of the 
enactment of this Act, the Federal Acquisition Regulatory Council shall 
amend the Federal Acquisition Regulation--
            (1) to prohibit the awarding of Federal contracts to 
        enemies of the United States; and
            (2) to provide that any Federal contract with an enemy of 
        the United States shall be null and void and may be immediately 
        terminated or rescinded by the head of the executive agency 
        concerned at no cost to the United States Government, including 
        any compensation otherwise due under termination for 
        convenience, termination for default, or other contract 
        provisions or provisions of law.
    (b) Prohibition on Subcontracts.--The regulations prescribed under 
subsection (a) shall prohibit the awarding of subcontracts under a 
Federal contract to enemies of the United States, and shall include the 
following requirements:
            (1) Federal contracts shall include a contract clause 
        prohibiting the use of a subcontractor at any tier under the 
        contract that is an enemy of the United States.
            (2) If the head of an executive agency determines that a 
        prime contractor has subcontracted at any tier under a Federal 
        contract with a contractor that is an enemy of the United 
        States, the contracting official shall--
                    (A) direct the prime contractor to terminate the 
                subcontract immediately with no further payment or 
                compensation to the subcontractor;
                    (B) notify the prime contractor that failure to 
                terminate the subcontract shall be grounds for default 
                on the prime contract; and
                    (C) take all necessary actions to ensure that no 
                further payments, including previously approved 
                payments and compensation otherwise due under 
                termination for convenience, termination for default, 
                or other contract provisions or provisions of law, are 
                made to the subcontractor.
    (c) Intelligence Community and National Security Exception.--The 
prohibitions under subsections (a) and (b) shall not apply to contracts 
entered into by elements of the intelligence community in support of 
intelligence activities or any other contract where national security 
may be compromised.
    (d) Monitoring of Terminated Contracts.--Not later than 90 days 
after the date of the enactment of this Act, the Administrator for 
Federal Procurement Policy shall direct the Administrator of General 
Services to add a field to the Federal Awardee Performance and 
Integrity Information System (``FAPIIS'') to record contracts voided or 
otherwise terminated based on a determination that the contract, or any 
subcontract under the contract, was with an enemy of the United States 
as defined under section 2(1).
    (e) Dissemination.--The Administrator for Federal Procurement 
Policy, in coordination with the Secretary of Defense and the Secretary 
of State, shall ensure that the regulations implementing this Act are 
disseminated to all personnel affected and that all contractors are 
made aware of this policy prior to contract awards.

SEC. 4. DETERMINATION OF ENEMY STATUS.

    (a) Regulations.--
            (1) In general.--Not later than 60 days after the date of 
        the enactment of this Act, the Secretary of Defense, in 
        coordination with the Secretary of State, shall prescribe 
        regulations establishing a process for the heads of executive 
        agencies to make a determination that a party to a contract is 
        an enemy of the United States as defined under section 2(1).
            (2) Elements.--The regulations prescribed under paragraph 
        (1) shall establish--
                    (A) a process for verifying the information on 
                which a determination under such paragraph is 
                sufficiently reliable;
                    (B) a process for protecting confidential sources;
                    (C) a process requiring the heads of executive 
                agencies to document the basis for determinations under 
                paragraph (1) and the information relied upon in making 
                such determinations; and
                    (D) a process for retaining such information for 
                possible review under section 5.

SEC. 5. DUE PROCESS PROCEDURE.

    (a) In General.--Any contractor whose contract is voided or 
otherwise terminated under the procedures prescribed pursuant to 
section 3 may utilize the procedures established under chapter 71 of 
title 41, United States Code, except that the only basis for a claim 
under these procedures is that the contractor is not an enemy of the 
United States as defined under section 2(1).
    (b) Protection of National Security.--The regulations established 
under chapter 71 of title 41, United States Code, shall be amended to 
provide for the protection of national security as appropriate when a 
claim is submitted under subsection (a).

SEC. 6. APPLICABILITY.

    This Act and the amendments made pursuant to this Act shall apply 
with respect to contracts entered into on or after the date of the 
enactment of this Act.
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