[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[S. 675 Introduced in Senate (IS)]

113th CONGRESS
  1st Session
                                 S. 675

                To prohibit contracting with the enemy.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             April 9, 2013

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

_______________________________________________________________________

                                 A BILL


 
                To prohibit contracting with the enemy.

    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 ``Never Contract With the Enemy Act''.

SEC. 2. PROHIBITION ON CONTRACTING WITH THE ENEMY.

    (a) Statement of Policy.--It shall be the policy of the United 
States that executive agencies shall not contract with the enemy or 
with a person or entity that has been identified as providing funds 
received under a contract, grant, or cooperative agreement directly or 
indirectly to an enemy of the United States or otherwise supporting 
those who are actively opposing the United States or coalition forces 
in a contingency operation.
    (b) Authority To Terminate or Void Contracts, Grants, and 
Cooperative Agreements and To Restrict Future Award.--
            (1) In general.--Not later than 30 days after the date of 
        the enactment of this Act, the Federal Acquisition Regulation 
        shall be revised to provide that, upon notice from a Senior 
        Procurement Executive or the commander of a geographic 
        combatant command under subsection (e)(3), the head of 
        contracting activity of an executive agency may do the 
        following:
                    (A) If the notice is that a person or entity has 
                been identified as providing funds received under a 
                contract, grant, or cooperative agreement of the 
                executive agency directly or indirectly to an enemy of 
                the United States or a person or entity who is actively 
                supporting an enemy of the United States or otherwise 
                supporting those who are actively opposing United 
                States or coalition forces in a contingency operation--
                            (i) either--
                                    (I) terminate for default the 
                                contract, grant, or cooperative 
                                agreement; or
                                    (II) void the contract, grant, or 
                                cooperative agreement in whole or in 
                                part; and
                            (ii) restrict the future award to the 
                        person or entity so identified of contracts, 
                        grants, or cooperative agreements of the 
                        executive agency.
                    (B) If the notice is that the person or entity has 
                failed to exercise due diligence to ensure that none of 
                the funds received under a contract, grant, or 
                cooperative agreement of the executive entity are 
                provided directly or indirectly to an enemy of the 
                United States or a person or entity who is actively 
                supporting an enemy of the United States or otherwise 
                supporting those who are actively opposing United 
                States or coalition forces in a contingency operation, 
                terminate for default the contract, grant, or 
                cooperative agreement.
            (2) Treatment as void.--For purposes of this section:
                    (A) A contract, grant, or cooperative agreement 
                that is void is unenforceable as contrary to public 
                policy.
                    (B) A contract, grant, or cooperative agreement 
                that is void in part is unenforceable as contrary to 
                public policy with regard to a segregable task or 
                effort under the contract, grant, or cooperative 
                agreement.
    (c) Contract Clause.--
            (1) In general.--Not later than 30 days after the date of 
        the enactment of this Act, the Federal Acquisition Regulation 
        shall be revised to require that--
                    (A) the clause described in paragraph (2) shall be 
                included in each covered contract, grant, and 
                cooperative agreement of an executive agency that is 
                awarded on or after the date of the enactment of this 
                Act; and
                    (B) to the maximum extent practicable, each covered 
                contract, grant, and cooperative agreement of an 
                executive agency that is awarded before the date of the 
                enactment of this Act shall be modified to include the 
                clause described in paragraph (2), other than the 
                matter provided for in subparagraph (A) of that 
                paragraph.
            (2) Clause described.--The clause described in this 
        paragraph is a clause that--
                    (A) requires the contractor, or the recipient of 
                the grant or cooperative agreement, to certify in 
                connection with entry into the contract, grant, or 
                cooperative agreement that the contractor or recipient, 
                as the case may be, has never knowingly provided funds 
                directly or indirectly to an enemy of the United States 
                or a person or entity who is actively supporting an 
                enemy of the United States or otherwise knowingly 
                supported those who are actively opposing United States 
                or coalition forces in a contingency operation;
                    (B) requires the contractor, or the recipient of 
                the grant or cooperative agreement, to exercise due 
                diligence to ensure that none of the funds received 
                under the contract, grant, or cooperative agreement are 
                provided directly or indirectly to an enemy of the 
                United States or a person or entity who is actively 
                supporting an enemy of the United States or otherwise 
                supporting those who are actively opposing United 
                States or coalition forces in a contingency operation; 
                and
                    (C) notifies the contractor, or the recipient of 
                the grant or cooperative agreement, of the authority of 
                the head of the contracting activity to terminate or 
                void the contract, grant, or cooperative agreement, in 
                whole or in part, as provided in subsection (b).
            (3) Covered contract, grant, or cooperative agreement.--In 
        this subsection, the term ``covered contract, grant, or 
        cooperative agreement'' means a contract, grant, or cooperative 
        agreement with an estimated value in excess of $20,000.
    (d) Requirements Following Contract Actions.--Not later than 30 
days after the date of the enactment of this Act, the Federal 
Acquisition Regulation shall be revised as follows:
            (1) To require that any head of contracting activity taking 
        an action under subsection (b) to terminate, void, or restrict 
        a contract, grant, or cooperative agreement notify in writing 
        the contractor or recipient of the grant or cooperative 
        agreement, as applicable, of the action.
            (2) To permit, in such manner as the Federal Acquisition 
        Regulation as so revised shall provide, the contractor or 
        recipient of a grant or cooperative agreement subject to an 
        action taken under subsection (b) to terminate or void the 
        contract, grant, or cooperative agreement, as the case may be, 
        an opportunity to contest the action within 30 days of receipt 
        of notice of the action.
    (e) Identification of Supporters of the Enemy.--
            (1) Identification.--Not later than 30 days after the date 
        of the enactment of this Act, the Secretary of Defense and each 
        Senior Procurement Executive shall carry out a program to use 
        available intelligence (including information made available 
        pursuant to subsection (g)(1)) to--
                    (A) either--
                            (i) in the case of the geographic combatant 
                        commands, review persons and entities who 
                        receive United States funds through contracts, 
                        grants, and cooperative agreements performed 
                        for such commands in their areas of 
                        responsibility; or
                            (ii) in the case of the Senior Procurement 
                        Executives, review persons and entities who 
                        receive United States funds through contracts, 
                        grants, and cooperative agreements performed 
                        for their agencies; and
                    (B) identify any such persons and entities who are 
                providing funds received under a contract, grant, or 
                cooperative agreement of an executive agency directly 
                or indirectly to an enemy of the United States or a 
                person or entity who is actively supporting an enemy of 
                the United States or otherwise supporting those who are 
                actively opposing United States or coalition forces in 
                a contingency operation.
            (2) Discharge by dod through commanders of combatant 
        commands.--The Secretary of Defense shall carry out the program 
        required by paragraph (1) through the commanders of the 
        geographic combatant commands.
            (3) Notification of contracting activities.--If a Senior 
        Procurement Executive or the commander of a geographic 
        combatant command, acting pursuant to a program required by 
        paragraph (1), identifies a person or entity as actively 
        supporting an enemy of the United States or otherwise 
        supporting those who are actively opposing United States or 
        coalition forces in a contingency operation, the Senior 
        Procurement Executive or commander, as the case may be, shall 
        notify the heads of contracting activities of the executive 
        agencies in writing of such identification. Any written 
        notification pursuant to this paragraph shall be made in 
        accordance with procedures established to implement the 
        revisions to the Federal Acquisition Regulation required by 
        this section.
            (4) Annual review.--As part of the programs required by 
        paragraph (1), the Senior Procurement Executives and the 
        commanders of the geographic combatant commands shall, on an 
        annual basis, review the lists of persons and entities 
        previously covered by a notice under paragraph (3) as having 
        been identified pursuant to paragraph (1)(B) in order to 
        determine whether or not such persons and entities continue to 
        warrant identification pursuant to paragraph (1)(B). If a 
        Senior Procurement Executive or commander determines pursuant 
        to such a review that a person or entity no longer warrants 
        identification pursuant to paragraph (1)(B), the Senior 
        Procurement Executive or commander, as the case may be, shall 
        notify the heads of contracting activities of the executive 
        agencies in writing of such determination.
            (5) Protection of classified information.--Classified 
        information relied upon to make an identification in accordance 
        with this subsection may not be disclosed to a contractor or a 
        recipient of a grant or cooperative agreement with respect to 
        which an action is taken pursuant to the authority provided in 
        subsection (b), or to their representatives, in the absence of 
        a protective order issued by a court of competent jurisdiction 
        established under Article I or Article III of the Constitution 
        of the United States that specifically addresses the conditions 
        upon which such classified information may be so disclosed.
    (f) Delegation of Certain Responsibilities.--
            (1) Responsibility to identify and provide notice.--A 
        Senior Procurement Executive may delegate the responsibilities 
        in paragraphs (1), (3), and (4) of subsection (e) to the 
        designated deputy of such Executive. The commander of a 
        geographic combatant command may delegate the responsibilities 
        in such paragraphs to the deputy commander of that combatant 
        command. Any delegation of responsibilities under this 
        paragraph shall be made in writing.
            (2) Nondelegation of responsibility for contract actions.--
        The authority provided by subsection (b) to terminate, void, or 
        restrict contracts, grants, and cooperative agreements may not 
        be delegated below the level of head of contracting activity.
    (g) Additional Responsibilities of Executive Agencies.--
            (1) Dissemination of information on supporters of the 
        enemy.--The Secretary of Defense and the Administrator for 
        Federal Procurement Policy shall jointly carry out a program 
        through which the contracting activities of the executive 
        agencies may provide information to Senior Procurement 
        Executives and the commanders of the geographic combatant 
        commands relating to persons or entities who may be providing 
        funds received under contracts, grants, or cooperative 
        agreements of the executive agencies directly or indirectly to 
        an enemy of the United States or a person or entity who is 
        actively supporting an enemy of the United States or otherwise 
        supporting those who are actively opposing United States or 
        coalition forces in a contingency operation. The program shall 
        be designed to facilitate and encourage the sharing of 
        information between executive agencies and the geographic 
        combatant commands.
            (2) Inclusion of information on contract actions in 
        fapiis.--Upon the termination, voiding, or restriction of a 
        contract, grant, or cooperative agreement of an executive 
        agency under subsection (b), the head of contracting activity 
        of the executive agency shall provide for the inclusion in the 
        Federal Awardee Performance and Integrity Information System 
        (FAPIIS), or other formal system of records on contractors or 
        entities, of appropriate information on the termination, 
        voiding, or restriction, as the case may be, of the contract, 
        grant, or cooperative agreement.
            (3) Reports.--The head of contracting activity that 
        receives a notice pursuant to subsection (e)(3) shall submit to 
        the Senior Procurement Executives and the commanders of the 
        geographic combatant commands a report on the action, if any, 
        taken by the head of contracting activity pursuant to 
        subsection (b), including a determination not to terminate, 
        void, or restrict the contract, grant, or cooperative agreement 
        as otherwise authorized by subsection (b).
    (h) Reports.--
            (1) In general.--Not later than March 1 each year, the 
        Secretary of Defense shall, in consultation with the heads of 
        other executive agencies, submit to the appropriate committees 
        of Congress a report on the use of the authorities in this 
        section in the preceding calendar year, including the 
        following:
                    (A) For each instance in which an executive agency 
                exercised the authority to terminate, void, or restrict 
                a contract, grant, and cooperative agreement pursuant 
                to subsection (b), the following:
                            (i) The executive agency taking such 
                        action.
                            (ii) An explanation of the basis for the 
                        action taken.
                            (iii) The value of the contract, grant, or 
                        cooperative agreement voided or terminated.
                            (iv) The value of all contracts, grants, or 
                        cooperative agreements of the executive agency 
                        in force with the person or entity concerned at 
                        the time the contract, grant, or cooperative 
                        agreement was terminated or voided.
                    (B) For each instance in which an executive agency 
                did not exercise the authority to terminate, void, or 
                restrict a contract, grant, and cooperative agreement 
                pursuant to subsection (b) as requested pursuant to 
                subsection (e)(3), the following:
                            (i) The executive agency concerned.
                            (ii) An explanation why the action was not 
                        taken.
            (2) Form.--Any report under this subsection may be 
        submitted in classified form.
    (i) Other Definitions.--In this section:
            (1) The term ``appropriate committees of Congress'' means--
                    (A) the Committee on Armed Services, the Committee 
                on Homeland Security and Governmental Affairs, and the 
                Committee on Appropriations of the Senate; and
                    (B) the Committee on Armed Services, the Committee 
                on Oversight and Government Reform, and the Committee 
                on Appropriations of the House of Representatives.
            (2) The term ``combatant command'' means a command 
        established pursuant to chapter 6 of title 10, United States 
        Code.
            (3) The term ``contingency operation'' has the meaning 
        given that term in section 101(a)(13) of title 10, United 
        States Code.
            (4) The term ``enemy of the United States'' means any of 
        the following:
                    (A) 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.
                    (B) Any organization designated as a terrorist 
                organization under section 219(a) of the Immigration 
                and Nationality Act (8 U.S.C. 1189(a)).
            (5) The term ``executive agency'' has the meaning given 
        that term in section 133 of title 41, United States Code.
            (6) The term ``head of contracting activity'' has the 
        meaning given that term in subpart 601 of part 1 of the Federal 
        Acquisition Regulation.
            (7) The term ``Senior Procurement Executive'' has the 
        meaning given that term in section 1702 of title 41, United 
        States Code.
    (j) Coordination With Current Authorities Applicable to CENTCOM.--
            (1) Repeal of superseded authority.--Effective 30 days 
        after the date of the enactment of this Act, section 841 of the 
        National Defense Authorization Act for Fiscal Year 2012 (Public 
        Law 112-81; 125 Stat. 1510; 10 U.S.C. 2302 note) is repealed.
            (2) Use of superseded authorities in discharge of 
        requirements.--In providing for the discharge of the 
        requirements of this section by the Department of Defense, the 
        Secretary of Defense may use and modify for that purpose 
        requirements and procedures established by the Secretary for 
        purposes of the discharge of the requirements of section 841 of 
        the National Defense Authorization Act for Fiscal Year 2012.
                                 <all>