[Congressional Record Volume 154, Number 85 (Thursday, May 22, 2008)]
[House]
[Pages H4763-H4778]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
DUNCAN HUNTER NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2009
The SPEAKER pro tempore. Pursuant to House Resolution 1218 and rule
XVIII, the Chair declares the House in the Committee of the Whole House
on the state of the Union for the further consideration of the bill,
H.R. 5658.
{time} 1531
In the Committee of the Whole
Accordingly, the House resolved itself into the Committee of the
Whole House on the state of the Union for the further consideration of
the bill (H.R. 5658) to authorize appropriations for fiscal year 2009
for military activities of the Department of Defense, to prescribe
military personnel strengths for fiscal year 2009, and for other
purposes, with Mr. Ross (Acting Chairman) in the chair.
The Clerk read the title of the bill.
The Acting CHAIRMAN. When the Committee of the Whole rose earlier
today, a request for a recorded vote on amendment No. 23 printed in
House Report 110-666 by the gentleman from Massachusetts (Mr. Tierney)
had been postponed.
Amendment No. 33 Offered by Mr. Pearce
The Acting CHAIRMAN. It is now in order to consider amendment No. 33
printed in House Report 110-666.
Mr. PEARCE. Mr. Chairman, I have an amendment at the desk.
The Acting CHAIRMAN. The Clerk will designate the amendment.
The text of the amendment is as follows:
Amendment No. 33 offered by Mr. Pearce:
At the end of title XXXI, insert the following:
SEC. 31__. INCREASED FUNDING FOR RELIABLE REPLACEMENT WARHEAD
PROGRAM.
(a) Increase.--The amount in section 3101 for weapons
activities, National Nuclear Security Administration, is
hereby increased by $10,000,000, to be available for the
Reliable Replacement Warhead program.
(b) Offset.--The amount in section 2402 is hereby reduced
by $10,000,000, to be derived from energy conservation on
military installations.
The Acting CHAIRMAN. Pursuant to House Resolution 1218, the gentleman
from New Mexico (Mr. Pearce) and a Member opposed each will control 5
minutes.
The Chair recognizes the gentleman from New Mexico.
Mr. PEARCE. Mr. Chairman, I yield myself such time as I may consume.
(Mr. PEARCE asked and was given permission to revise and extend his
remarks.)
Mr. PEARCE. Mr. Chairman, I rise today to offer an amendment to
restore a small sum of money into an important program, the Reliable
Replacement Warhead program. The RRW is critically important for our
national security. Our current nuclear stockpile is aging. As it ages,
we must constantly pour more money into maintaining the aging weapons.
We have a choice to make as a Nation: Do we continue to rely on
current weapon stockpiles and pay an increasing cost of maintaining the
readiness and reliability of these weapons, or do we develop a new line
of weapons to replace the current stockpile? The RRW would improve the
overall shelf life of a warhead from 30 to over 50 years, and the
program is true to its name.
RRW does not pursue new nuclear weapons capabilities. Rather, it
pursues making our weapons more reliable, and more reliable weapons
will help reduce the maintenance costs of our nuclear stockpile and
ensure that we have stable and reliable weapons ready, and most
notably, reduce our overall nuclear stockpile by potentially as many as
1,000 warheads.
Without RRW, we will continue to have a larger weapon stockpile. Not
pursuing RRW is essentially counterproductive to our stated goals of
arms reduction. Not only is my amendment the responsible thing to do
for our national security, it's the fiscally responsible choice as
well. The current life extension programs that are designed to extend
the shelf life of expired warheads are at a great cost to the taxpayer.
I think we should all agree on the goal of reducing our total
stockpile of nuclear arms, and if you agree with that goal, then I urge
you to adopt my amendment to restore funding for the RRW program, the
Reliable Replacement Warhead program.
I reserve the balance of my time.
Mrs. TAUSCHER. Mr. Chairman, I rise in opposition.
The Acting CHAIRMAN. The gentlewoman from California is recognized
for 5 minutes.
Mrs. TAUSCHER. Mr. Chairman, I yield myself such time as I may
consume.
Mr. Chairman, I rise in opposition to the Pearce amendment to H.R.
5658, the fiscal year 2009 defense authorization bill. The Pearce
amendment would restore $10 million for the Reliable Replacement
Warhead that our bill currently redirects to a more broad-based,
advanced certification program. Our bill focuses on sustaining and
modernizing the stockpile stewardship program, the core of this
Nation's effort to ensure that our nuclear weapons are safe, secure,
and reliable.
Before any decisions are made about RRW, we must first answer
fundamental questions about our strategic posture and nuclear weapons
policies. That's why Congress established the bipartisan Congressional
Commission on the Strategic Posture of the United States in last year's
National Defense Authorization Act.
The Commission's report, due in several months, and the nuclear
posture review required of the next administration will help frame the
looming decisions about sustaining our nuclear deterrent and
modernizing the nuclear weapons complex.
One day, something like RRW may be part of a stockpile stewardship
program. But no funds were appropriated to conduct the RRW design and
cost study last year, and this year's request did not include nearly
enough to complete the study. In this context, the committee-approved
bill shifts $10 million requested for RRW to advance certification and
authorizes the National Nuclear Security Administration to address
questions raised by the JASON panel last year about the challenge of
certifying RRW without underground testing.
The Pearce amendment offset is also a big problem. The offset is a
$10 million cut to the DOD Energy Conservation Investment Program, or
ECIP. The Department of Defense uses ECIP to reduce energy consumption
and greenhouse gas emissions, increase the use of renewable energy and
meet national energy policy goals. And ECIP works. Its projects have a
nearly 2-to-1 savings to investment ratio on average. A $10 million
reduction would be a 12\1/2\ percent cut to ECIP.
Our bill, H.R. 5658, takes a prudent, sound approach to stewardship
of our Nation's nuclear deterrent.
I urge my colleagues to oppose the Pearce amendment.
I reserve the balance of my time.
Mr. PEARCE. Mr. Chairman, I would yield 1 minute to the gentleman
from California (Mr. Hunter).
Mr. HUNTER. Mr. Chairman, I appreciate the gentleman for bringing
this amendment, and we lament the fact that our nuclear warheads are
getting older, that we don't have a testing regime in place any longer
and that that necessarily deteriorates the reliability factor. So the
idea was let's build a reliable replacement warhead, and the fact that
we haven't proceeded down that path is really a tragedy.
Now, I know the gentleman has $10 million in this amendment for this
Reliable Replacement Warhead. He takes some money from the energy
conservation program, which has many, many good aspects. I know that
some Members are torn between these two important goals, one of
developing energy
[[Page H4764]]
conservation on military bases, and the other developing this warhead.
I come down, Mr. Chairman, on the side of ensuring that this critical
asset, which is a very, very important part of America's security
apparatus, that is, a reliable strategic deterrent, I come down on that
side. As a result of that, I support Mr. Pearce's amendment very
strongly.
Mrs. TAUSCHER. Mr. Chairman, at this time I am happy to yield 1
minute to my colleague and friend from New Jersey (Mr. Holt).
Mr. HOLT. Mr. Chairman, I thank Mrs. Tauscher for her wise
leadership.
Mr. Chairman, this amendment is unwise and, at the very least,
premature. Existing Department of Energy Reports and reports from
outside consultants, such as the JASON group, have made it clear that
our existing nuclear weapons will be viable for decades. It makes no
sense to begin construction of a new generation of nuclear weapons. It
is not necessary, and worse, it would be harmful to our security.
In light of our efforts to convince other countries to abstain from
pursuing nuclear weapons, a pressing, indeed critical, national need
for our security to persuade other countries to abstain going forward
with Reliable Replacement Warhead programs would not make sense. It was
defunded last year by the Appropriations Committee largely for some of
these reasons I have outlined.
Finally, the United States has not recently conducted a comprehensive
review of its nuclear posture, and no construction of new nuclear
weapons or major alterations of the DOE lab complexes should be made
until such a review is completed.
Accordingly, I urge my colleagues to oppose the Pearce amendment.
Mr. PEARCE. Mr. Chairman, how much time is remaining?
The Acting CHAIRMAN. The gentleman from New Mexico has 2 minutes
remaining. The gentlewoman from California has 1\1/2\ minutes
remaining.
Mr. PEARCE. Mr. Chairman, I yield myself such time as I might
consume.
Mr. Chairman, I have heard the arguments that maybe we're taking too
much money from the EEC program, the Energy Efficiency Conservation
program, that we're actually taking 12 percent was what was stated, but
actually the truth is from last year's funding, we're not taking a
penny. We're actually leaving that program funded at exactly the same
level.
I have heard that we should not be building new weapons in order to
give the right example to some of our friends around the world. And
when I consider our attempts to influence our friends in North Korea, I
would think that our unwillingness to build new weapons won't influence
them at all. And when I think about influencing our friends in Iran, I
think that our new posture of not maintaining our nuclear weapons will
not influence them at all. In fact, they might be influenced in the
other way.
Mr. Chairman, the world is not safer since 9/11. The world is more
dangerous. During the 50 or so years of the Cold War, we didn't
experience one strike inside the United States that even came close to
being like the attack on 9/11. Yet after the Cold War, 1993, we had the
first attack on the World Trade Center and then the second attack in
2001.
The world is getting progressively more dangerous, and I think for us
to think that we can negotiate with these different countries is one
that we should back up with the capability to strike back if a strike
is needed.
I would reserve the balance of my time, Mr. Chairman.
Mrs. TAUSCHER. Mr. Chairman, I just want to make sure that my
colleague from New Mexico knows that we spend--and that anybody
listening--we spend over $6 billion maintaining the weapons. So it's
hardly not spending any money at all.
At this time, I am happy to yield the balance of my time to the
gentleman from Indiana, the chairman of the Energy and Water
Subcommittee, Mr. Visclosky.
Mr. VISCLOSKY. Mr. Chairman, I greatly appreciate the chairwoman
yielding to me, and I do rise in respectful opposition to the
gentleman's amendment.
The fact is we ought to ensure our security as a Nation. To best do
that, we need to develop, in a bipartisan fashion, in a fashion that
exists over a number of administrations, over a number of Congresses
regardless of who and which party controlled both those branches of
government, a comprehensive post-Cold War, post-9/11 nuclear strategy.
My concern, because that $6 billion that the chairwoman accurately
suggests we do spend on a nuclear weapons complex, is a complex that we
have to re-examine and to characterize. If we begin the construction of
a new weapon in place, we simply exacerbate the current problems.
In the end, we ought to develop a strategy and then determine the
types and the numbers of weapons we need. And not just in the sense of
nuclear, but conventional, as well as other aspects of what that plan
should be as opposed to having a set number of weapons and of various
types and then constructing a strategy around them.
The Energy and Water appropriations bill that was passed and is in
effect as part of the omnibus package for fiscal year 2008 indicates
that's exactly what this Nation should be about, and I would ask my
colleagues to oppose the gentleman's amendment.
{time} 1545
Mr. PEARCE. Mr. Chairman, I've listened with respect to the arguments
from all of the speakers on the opposition side. I would note that $10
million, the amount that is designated for the RRW, is just enough to
keep the doors open; that once we allow this team of experts to
dissipate, once these people are hired away, then we will never build
another team possible. This is just enough money to hold the human
resources together to produce these weapons because we will not be able
to produce them after we give up the human technology, the human
capabilities, and so just enough to keep the doors open. It's exactly
what the Senate did last year
I would urge passage of the Pearce amendment.
The Acting CHAIRMAN. The question is on the amendment offered by the
gentleman from New Mexico (Mr. Pearce).
The question was taken; and the Acting Chairman announced that the
noes appeared to have it.
Mr. PEARCE. Mr. Chairman, I demand a recorded vote.
The Acting CHAIRMAN. Pursuant to clause 6 of rule XVIII, further
proceedings on the amendment offered by the gentleman from New Mexico
will be postponed.
Amendment No. 8 Offered by Mr. Boren
The Acting CHAIRMAN. It is now in order to consider amendment No. 8
printed in House Report 110-666.
Mr. BOREN. Mr. Chairman, I offer an amendment.
The Acting CHAIRMAN. The Clerk will designate the amendment.
The text of the amendment is as follows:
Amendment No. 8 offered by Mr. Boren:
At the end of subtitle D of title III, add the following
new section:
SEC. 335. EXCEPTION TO ALTERNATIVE FUEL PROCUREMENT
REQUIREMENT.
Section 526 of the Energy Independence and Security Act of
2007 (Public Law 110-140; 42 U.S. C. 17142) is amended--
(1) by striking ``No Federal agency'' and inserting ``(a)
Requirement.--Except as provided in subsection (b), no
Federal agency''; and
(2) by adding at the end the following:
``(b) Exception.--Subsection (a) does not prohibit a
Federal agency from entering into a contract to purchase a
generally available fuel that is not an alternative or
synthetic fuel or predominantly produced from a
nonconventional petroleum source, if--
``(1) the contract does not specifically require the
contractor to provide an alternative or synthetic fuel or
fuel from a nonconventional petroleum source;
``(2) the purpose of the contract is not to obtain an
alternative or synthetic fuel or fuel from a nonconventional
petroleum source; and
``(3) the contract does not provide incentives for a
refinery upgrade or expansion to allow a refinery to use or
increase its use of fuel from a nonconventional petroleum
source.''.
The Acting CHAIRMAN. Pursuant to House Resolution 1218, the gentleman
from Oklahoma (Mr. Boren) and a Member opposed each will control 10
minutes.
The Chair recognizes the gentleman from Oklahoma.
Mr. BOREN. Mr. Chairman, I yield myself as much time as I may
consume.
Today, I rise in support of my amendment to the Duncan Hunter
National
[[Page H4765]]
Defense Authorization Act for Fiscal Year 2009 that would bring
additional clarity to the language in section 526 of the Energy
Independence and Security Act of 2007.
First, I would like to thank Chairman Skelton and Ranking Member
Hunter for their exceptional work in crafting this important piece of
legislation that is extremely vital for the defense needs of this
Nation. This is a good bill. I believe it will address the readiness
needs of our Armed Forces for the near and distant future. Our
servicemembers that so bravely protect and defend our Nation deserve
nothing less than our full support.
Mr. Chairman, my amendment now being considered before this Chamber
would amend section 526 of the Energy Independence and Security Act in
a manner that would address the concerns that I share with many of my
fellow colleagues within this Chamber.
Section 526 prohibits any Federal agency from entering into a
contract to purchase alternative or synthetic fuels for mobility-
related purposes, unless the life-cycle greenhouse gas emissions of
such fuels are less than that of conventional petroleum-based fuels.
While I recognize the positive intent behind section 526 to reduce
greenhouse gas emissions, I have strong concerns about how it will
affect the ability of DOD to provide for the future energy needs of our
Armed Forces.
Section 526 falls short of determining what alternative or synthetic
fuels Federal agencies are prohibited from contracting to purchase. It
also does not clearly define ``nonconventional petroleum sources.''
This ambiguity in the law, therefore, creates uncertainty as to whether
the Department of Defense can procure generally available fuels that
contain mix-in amounts of fuel derived from nonconventional petroleum
sources, such as oil sands.
My amendment would amend section 526 to allow DOD and other Federal
agencies to enter into contracts to purchase generally available fuels
that are not predominantly derived from nonconventional fuel sources.
Any contract to purchase such fuel must specify that the lifecycle
greenhouse emissions are less than that of conventional petroleum
sources.
If my amendment is adopted, it would not repeal section 526. Rather,
it will improve section 526 to provide additional clarity that is
needed to meet the future energy needs of our Armed Forces.
Mr. Chairman, this amendment reflects an agreement--this is very
important--this is an agreement that was reached with the respective
committees of jurisdiction, House leadership and myself. I am very
pleased that we were able to reach a compromise on the language of this
amendment that is mutually acceptable to all parties.
Therefore, I urge my colleagues from both sides of the aisle to
support the adoption of this amendment.
I want to thank the chairman.
I reserve the balance of my time.
Mr. HUNTER. I rise in opposition to the amendment, Mr. Chairman.
The Acting CHAIRMAN. The gentleman from California is recognized for
10 minutes.
Mr. HUNTER. Thank you, Mr. Chairman.
First, Mr. Chairman, I want to congratulate Mr. Boren who is a great
member of the Armed Services Committee for bringing this amendment, and
I think we recognize a real problem with section 526, which is really a
section, and his amendment does take away some of the onus of section
526.
Section 526 really weds us to high-grade Middle Eastern oil. It says
that if you come up with other types of fuel that are alternatives, but
that might have a greenhouse gas footprint higher than this high-end
Middle Eastern oil, and there are very few types of petroleum-based
fuels which do that, you can't use it.
Mr. Boren has taken some of the onus off of that by saying that if
it's not predominantly that type of oil, meaning you can use, for
example, tar sands from Canada and other types, that section 526 does
not apply.
Now, the problem is, I'm reading the last of the amendment, and one
of the conditions is that the contracts under which this petroleum
product would flow says the contract--and I'm quoting from the last of
the amendment--the contract does not provide incentives for a refinery
upgrade or expansion to allow a refinery to use or increase its use of
fuel from a nonconventional petroleum source.
And I think we should be doing everything we can to expand
refineries. I don't think we've built a refinery in decades, and we all
sat in this Chamber and watched gas prices go through the roof here not
too long ago when they had just a couple of refineries down for repair.
So I know Mr. Boren's heart's in the right place, and he's brought us
at least halfway across the river here. I guess what I'd like to see is
the double Boren amendment that takes us all the way and eliminates
section 526.
I congratulate the gentleman. I know a lot of our Members are going
to probably support this because it, in fact, does take us part way
home. I wish we could go all the way, and I thank the gentleman for his
amendment.
I reluctantly oppose it because I would like to see the full loaf
here.
I reserve the balance of my time.
Mr. BOREN. Mr. Chairman, I want to thank the ranking member for his
friendship. I know this is his last term here on Capitol Hill, and he's
been a great leader for our committee. He's also a fellow deer hunter
friend of mine, and I would also like to see the double Boren
amendment. We're going to try to take half a loaf right now and work on
this in the future.
At this time, I would like to yield 1\1/2\ minutes to my great friend
and colleague from the State of Texas (Mr. Ortiz).
Mr. ORTIZ. Mr. Chairman, I rise in support of the amendment offered
by my good friend from Oklahoma (Mr. Boren).
You know, the Canadian ambassador to the United States and some oil
companies have expressed concern about the application of section 526
to petroleum derived from oil sands.
North American oil sands are vital to United States oil supplies. Oil
sands represent approximately 5 percent of the total U.S. oil supply
and are mixed in with fuel derived from other sources.
This amendment addresses the concerns that have been raised, while
preserving the overall intent of section 526. Section 526 establishes a
positive goal for future alternative fuels greenhouse gas emissions.
This amendment clarifies section 526 while retaining the standards it
sets for greenhouse gas emissions.
This amendment would simply provide an exception to section 526 by
exempting contracts for generally available fuels that are not
predominantly produced from nonconventional petroleum sources, thereby
addressing the uncertainty regarding the presence of fuel from oil
sands mixed with fuel from other sources in existing commercial
processes. And my friends, all I can say is there's always a first
time.
I'd like to compliment my friend for coming up with this amendment,
and I urge my colleagues to support this amendment.
Mr. HUNTER. Mr. Chairman, I would like to yield at this time 3
minutes to Mr. Upton, the gentleman from Michigan.
Mr. UPTON. Mr. Chairman, I rise in support of the amendment, though I
wish it could do a lot more. I appreciate your remarks, my friend from
Oklahoma, and certainly my good friend from Texas, a member of the
House Armed Services Committee, and I, in large part, echo the remarks
of my good friend, the former chairman and now ranking member, Mr.
Hunter.
Section 526, I'm not sure where it really came from. It was a
provision that was snuck in a major energy bill this last year, and it
somehow became law. And sadly, as we talk to our Canadian fronts,
they're producing 1.5 million barrels of oil a day, 1.5 million barrels
a day from oil shale, tar sands rather, in Alberta, and they want to
send it to their good friends to the south, the United States of
America. And this section 527 stops it at the border. It prevents it
from coming in.
Now, I think we all know that we have a supply problem in this
country which is why the price of gasoline continues to go up as it has
every single day. And until we get the message out that we need more
supply so that we can counter this price increase, they're going to
continue to go up. It's crazy to think that our friends, the Canadians,
who have all of this up there and want to send it to us down here in
the Lower 48, cannot do that.
[[Page H4766]]
As I sat down with their ambassador a few weeks ago and their energy
minister as well, they're producing at least 1.5 million barrels a day.
They're anticipating within 4 or 5 years they're going to be producing
as much as 4 million barrels a day. They can't consume that all
perhaps, and guess what they're going to do. They're likely to build a
pipeline, and they're going to send it west. It's going to end up in
China or someplace else, rather than coming down and be refined in this
country and used by our motorists across the country.
So, for me, I'd like to repeal the whole section, and I know the
gentleman doesn't do that in this amendment. But it's a step in the
right direction, and I would like to think that we can hold our nose
and be able to support this amendment, make it part of going to
conference and perhaps even make it better when it emerges from the
House and the Senate.
I appreciate the gentleman's willingness to work with Members on both
sides, and I certainly appreciate a number of my colleagues on that
side of the aisle who are looking to work with me to try and repeal the
whole section. But we realize that the Rules Committee was not going to
say ``yes'' to us, and this is one step.
We'd like to take a giant step, which this bill does not do, but at
least it is going in the right direction, increasing our supply to a
degree so that maybe we can have some downward pressure on the price of
gasoline at the pump for all Americans across the country.
Mr. BOREN. I yield back the balance of my time.
Mr. HUNTER. Mr. Chairman, I think we've had a good discussion, and I
appreciate the gentleman's amendment and his contribution to the
committee, and we would yield back at this time.
The Acting CHAIRMAN. The question is on the amendment offered by the
gentleman from Oklahoma (Mr. Boren).
The amendment was agreed to.
Amendment No. 15 Offered by Mr. Waxman
The Acting CHAIRMAN. It is now in order to consider amendment No. 15
printed in House Report 110-666.
Mr. WAXMAN. Mr. Chairman, I offer an amendment.
The Acting CHAIRMAN. The Clerk will designate the amendment.
The text of the amendment is as follows:
Amendment No. 15 offered by Mr. Waxman:
Add at the end of the bill the following new division:
DIVISION D--GOVERNMENTWIDE ACQUISITION IMPROVEMENTS
Sec. 4001. Short title.
TITLE XLI--ENHANCED COMPETITION
Sec. 4101. Minimizing sole-source contracts.
Sec. 4102. Limitation on length of certain noncompetitive contracts.
Sec. 4103. Requirement for purchase of property and services pursuant
to multiple award contracts.
TITLE XLII--CURBING ABUSE-PRONE CONTRACTS
Sec. 4201. Regulations to minimize the inappropriate use of cost-
reimbursement contracts.
Sec. 4202. Preventing abuse of interagency contracts.
Sec. 4203. Prohibitions on the use of lead systems integrators.
Sec. 4204. Regulations on excessive pass-through charges.
Sec. 4205. Linking of award and incentive fees to acquisition outcomes.
Sec. 4206. Minimizing abuse of commercial services item authority.
TITLE XLIII--ACQUISITION WORKFORCE
Sec. 4301. Acquisition workforce development fund.
Sec. 4302. Contingency contracting corps.
TITLE XLIV--ANTI-FRAUD PROVISIONS
Sec. 4401. Protection for contractor employees from reprisal for
disclosure of certain information.
Sec. 4402. Mandatory Fraud Reporting.
Sec. 4403. Access of General Accounting Office to Contractor Employees.
Sec. 4404. Preventing conflicts of interest.
TITLE XLV--ENHANCED CONTRACT TRANSPARENCY
Sec. 4501. Disclosure of CEO salaries.
Sec. 4502. Database for contracting officers and suspension and
debarment officials.
Sec. 4503. Review of database.
Sec. 4504. Disclosure in applications.
Sec. 4505. Role of interagency committee.
Sec. 4506. Authorization of independent agencies.
Sec. 4507. Authorization of appropriations.
Sec. 4508. Report to Congress.
Sec. 4509. Improvements to the Federal procurement data system.
SEC. 4001. SHORT TITLE.
This division may be cited as the ``Clean Contracting Act
of 2008''.
TITLE XLI--ENHANCED COMPETITION
SEC. 4101. MINIMIZING SOLE-SOURCE CONTRACTS.
(a) Plans Required.--Subject to subsection (c), the head of
each executive agency covered by title III of the Federal
Property and Administrative Services Act of 1949 (41 U.S.C.
251 et seq.) or, in the case of the Department of Defense,
the Under Secretary of Defense for Acquisition, Technology,
and Logistics, shall develop and implement a plan to
minimize, to the maximum extent practicable, the use of
contracts entered into using procedures other than
competitive procedures by the agency or department concerned.
The plan shall contain measurable goals and shall be
completed and submitted to the Committee on Oversight and
Government Reform of the House of Representatives, the
Committee on Homeland Security and Governmental Affairs of
the Senate, and the Committees on Appropriations of the House
of Representatives and the Senate and, in the case of the
Department of Defense and the Department of Energy, the
Committees on Armed Services of the Senate and the House of
Representatives, with a copy provided to the Comptroller
General, not later than 1 year after the date of the
enactment of this Act.
(b) Comptroller General Review.--The Comptroller General
shall review the plans provided under subsection (a) and
submit a report to Congress on the plans not later than 18
months after the date of the enactment of this Act.
(c) Requirement Limited to Certain Agencies.--The
requirement of subsection (a) shall apply only to those
agencies that awarded contracts in a total amount of at least
$1,000,000,000 in the fiscal year preceding the fiscal year
in which the report is submitted.
(d) Certain Contracts Excluded.--The contracts entered into
under the authority of the Small Business Act shall not be
included in the plans developed and implemented under
subsection (a), except contracts that are awarded pursuant to
section 602 of Public Law 100-656 (as amended by section 22
of Public Law 101-37 (103 Stat. 75), section 2 of title V of
Public Law 101-515 (104 Stat. 2140), section 205 of Public
Law 101-574 (104 Stat. 2819), and section 608 of Public Law
103-403 (108 Stat. 4204)).
SEC. 4102. LIMITATION ON LENGTH OF CERTAIN NONCOMPETITIVE
CONTRACTS.
(a) Civilian Agency Contracts.--Section 303(d) of the
Federal Property and Administrative Services Act of 1949 (41
U.S.C. 253(d)) is amended by adding at the end the following
new paragraph:
``(3)(A) The contract period of a contract described in
subparagraph (B) that is entered into by an executive agency
pursuant to the authority provided under subsection (c)(2)--
``(i) may not exceed the time necessary--
``(I) to meet the unusual and compelling requirements of
the work to be performed under the contract; and
``(II) for the executive agency to enter into another
contract for the required goods or services through the use
of competitive procedures; and
``(ii) may not exceed 270 days unless the head of the
executive agency entering into such contract determines that
exceptional circumstances apply.
``(B) This paragraph applies to any contract in an amount
greater than $1,000,000.''.
(b) Defense Contracts.--Section 2304(d) of title 10, United
States Code, is amended by adding at the end the following
new paragraph:
``(3)(A) The contract period of a contract described in
subparagraph (B) that is entered into by an agency pursuant
to the authority provided under subsection (c)(2)--
``(i) may not exceed the time necessary--
``(I) to meet the unusual and compelling requirements of
the work to be performed under the contract; and
``(II) for the agency to enter into another contract for
the required goods or services through the use of competitive
procedures; and
``(ii) may not exceed 270 days unless the head of the
agency entering into such contract determines that
exceptional circumstances apply.
``(B) This paragraph applies to any contract in an amount
greater than $1,000,000.''.
SEC. 4103. REQUIREMENT FOR PURCHASE OF PROPERTY AND SERVICES
PURSUANT TO MULTIPLE AWARD CONTRACTS.
(a) Regulations Required.--Not later than 12 months after
the date of the enactment of this Act, the Federal
Acquisition Regulation shall be amended to require enhanced
competition in the purchase of property and services by all
executive agencies pursuant to multiple award contracts.
(b) Content of Regulations.--
(1) In general.--The regulations required by subsection (a)
shall provide, at a minimum, that each individual purchase of
property or services in excess of the simplified acquisition
threshold that is made under a multiple award contract shall
be made on a competitive basis unless a contracting officer--
(A) waives the requirement on the basis of a determination
that--
(i) one of the circumstances described in paragraphs (1)
through (4) of section 303J(b) of the Federal Property and
Administrative
[[Page H4767]]
Services Act of 1949 (41 U.S.C. 253j(b)) or section 2304c(b)
of title 10, United States Code, applies to such individual
purchase; or
(ii) a law expressly authorizes or requires that the
purchase be made from a specified source; and
(B) justifies the determination in writing.
(2) Competitive basis procedures.--For purposes of this
subsection, an individual purchase of property or services is
made on a competitive basis only if it is made pursuant to
procedures that--
(A) except as provided in paragraph (3), require fair
notice of the intent to make that purchase (including a
description of the work to be performed and the basis on
which the selection will be made) to be provided to all
contractors offering such property or services under the
multiple award contract; and
(B) afford all contractors responding to the notice a fair
opportunity to make an offer and have that offer fairly
considered by the official making the purchase.
(3) Exception to notice requirement.--
(A) In general.--Notwithstanding paragraph (2), and subject
to subparagraph (B), notice may be provided to fewer than all
contractors offering such property or services under a
multiple award contract as described in subsection (d)(2) if
notice is provided to as many contractors as practicable.
(B) Limitation on exception.--A purchase may not be made
pursuant to a notice that is provided to fewer than all
contractors under subparagraph (A) unless--
(i) offers were received from at least 3 qualified
contractors; or
(ii) a contracting officer of the executive agency
determines in writing that no additional qualified
contractors were able to be identified despite reasonable
efforts to do so.
(c) Public Notice Requirements Related to Sole Source Task
or Delivery Orders.--Not later than 12 months after the date
of the enactment of this Act, the Federal Acquisition
Regulation shall be amended to require the head of each
executive agency to publish on--
(1) FedBizOpps notice of all sole source task or delivery
orders in excess of the simplified acquisition threshold that
are placed against multiple award contracts not later than 14
days after such orders are placed, except in the event of
extraordinary circumstances or classified orders; and
(2) the website of the agency and through a Governmentwide
website selected by the Administrator for Federal Procurement
Policy the determinations required by (b)(1)(B) related to
sole source task or delivery orders placed against multiple
award contracts not later than 14 days after such orders are
placed, except in the event of extraordinary circumstances or
classified orders.
(3) This subsection does not require the public
availability of information that is exempt from public
disclosure under section 552(b) of title 5, United States
Code.
(d) Definitions.--In this section:
(1) The term ``individual purchase'' means a task order,
delivery order, or other purchase.
(2) The term ``multiple award contract'' means--
(A) a contract that is entered into by the Administrator of
General Services under the multiple award schedule program
referred to in section 2302(2)(C) of title 10, United States
Code;
(B) a multiple award task order contract that is entered
into under the authority of sections 2304a through 2304d of
title 10, United States Code, or sections 303H through 303K
of the Federal Property and Administrative Services Act of
1949 (41 U.S.C. 253h through 253k); and
(C) any other indefinite delivery, indefinite quantity
contract that is entered into by the head of an executive
agency with 2 or more sources pursuant to the same
solicitation.
(3) The term ``sole source task or delivery order'' means
any order that does not follow the competitive base
procedures in paragraphs (b)(2) or (b)(3).
(e) Applicability.--The regulations required by subsection
(a) shall apply to all individual purchases of property or
services that are made under multiple award contracts on or
after such effective date, without regard to whether the
multiple award contracts were entered into before, on, or
after such effective date.
TITLE XLII--CURBING ABUSE-PRONE CONTRACTS
SEC. 4201. REGULATIONS TO MINIMIZE THE INAPPROPRIATE USE OF
COST-REIMBURSEMENT CONTRACTS.
(a) In General.--Not later than 12 months after the date of
the enactment of this Act, the Federal Acquisition Regulation
shall be amended to minimize the inappropriate use of cost-
reimbursement contracts and to ensure the proper use of such
contracts.
(b) Content.--The regulations required under subsection (a)
shall--
(1) identify, at a minimum--
(A) the circumstances under which cost reimbursement
contracts or task or delivery orders are appropriate;
(B) the acquisition plan facts necessary to support a
decision to use cost reimbursement contracts;
(C) the acquisition workforce resources necessary to award
and manage cost reimbursement contracts; and
(2) establish a requirement for each executive agency to--
(A) annually assess its use of cost-reimbursement
contracts;
(B) establish and implement metrics to measure progress
toward minimizing any inappropriate use of cost-reimbursement
contracts identified during the assessment process; and
(C) prepare and submit an annual report to the Office of
Management and Budget assessing progress in meeting the
metrics established in (B).
(c) Comptroller General Evaluations.--Within one year of
the completion of the first annual reports required by
subsection (b)(2)(C), the Comptroller General shall review
the progress of agencies in implementing the regulations
required by (a).
(d) Report.--Subject to subsection (f), the Director of the
Office of Management and Budget shall submit an annual report
to Congressional committees identified in subparagraph (e)
and the Comptroller General on the use of cost-reimbursement
contracts and task or delivery orders by all Federal
agencies, including the Department of Defense. The report
shall be submitted no later than March 1 and will cover the
fiscal year ending September 30 of the prior year. The report
shall include--
(1) the total number and value of contracts awarded and
orders issued during the covered fiscal year;
(2) the number and value of cost-reimbursement contracts
awarded and orders issued during the covered fiscal year;
(3) a list of contracts and task and delivery orders
identified in subparagraph (2) exceeding ten million dollars
($10,000,000), whose period of performance, including
options, exceeded three years; the reasons why such contracts
or orders could not be priced or converted to a fixed-price
basis; and the actions being taken by the agency to do so;
(4) a certification by the contracting agency that for each
contract identified in subparagraph (3) that an appropriate
number of trained acquisition personnel, consistent with the
complexity and risk associated with the contract or order,
have been assigned to provide oversight of the contractor's
performance; and
(5) a description of each agency's actions to assure the
appropriate use of cost-reimbursement contracts.
(e) Congressional Committees Defined.--The report required
by subsection (d) shall be submitted to the Committee on
Oversight and Government Reform of the House of
Representatives; the Committee on Homeland Security and
Governmental Affairs of the Senate; the Committees on
Appropriations of the House of Representatives and the
Senate; and, in the case of the Department of Defense and the
Department of Energy, the Committees on Armed Services of the
Senate and the House of Representatives.
(f) Requirements Limited to Certain Agencies.--The
requirements of subsections (b) and (d) shall apply only to
those agencies that awarded contracts and issued orders in a
total amount of at least $1,000,000,000 in the fiscal year
proceeding the fiscal year in which the assessments and
reports are submitted.
SEC. 4202. PREVENTING ABUSE OF INTERAGENCY CONTRACTS.
(a) Office of Management and Budget Policy Guidance.--
(1) Report and guidelines.--Not later than one year after
the date of the enactment of this Act, the Director of the
Office of Management and Budget shall--
(A) submit to Congress a comprehensive report on
interagency acquisitions, including their frequency of use,
management controls, cost-effectiveness, and savings
generated; and
(B) issue guidelines to assist the heads of executive
agencies in improving the management of interagency
acquisitions.
(2) Matters covered by guidelines.--For purposes of
paragraph (1)(B), the Director shall include guidelines on
the following matters:
(A) Procedures for the use of interagency acquisitions to
maximize competition, deliver best value to executive
agencies, and minimize waste, fraud, and abuse.
(B) Categories of contracting inappropriate for interagency
acquisition, due to high risk of waste, fraud, or abuse.
(C) Requirements for training acquisition workforce
personnel in the proper use of interagency acquisitions.
(b) Regulations Required.--Not later than one year after
the date of the enactment of this Act, the Federal
Acquisition Regulation shall be revised to require that all
interagency acquisitions--
(1) include a written agreement between the requesting
agency and the servicing agency assigning responsibility for
the administration and management of the contract;
(2) include a determination that an interagency acquisition
is the best procurement alternative; and
(3) include sufficient documentation to ensure an adequate
audit.
(c) Agency Reporting Requirement.--The senior procurement
executive for each executive agency shall, as directed by the
Director of the Office of Management and Budget, submit to
the Director annual reports on the actions taken by the
executive agency pursuant to the guidelines issued under
subsection (a).
(d) Definitions.--In this section:
(1) The term ``executive agency'' has the meaning given
such term in section 4(1) of the Office of Federal
Procurement Policy Act (41 U.S.C. 403(1)).
(2) The term ``head of executive agency'' means the head of
an executive agency except that, in the case of a military
department, the term means the Secretary of Defense.
[[Page H4768]]
(3) The term ``interagency acquisition'' means a procedure
by which an executive agency needing supplies or services
(the requesting agency) obtains them from another executive
agency (the servicing agency). The term includes acquisitions
under section 1535 of title 31, United States Code (commonly
referred to as the ``Economy Act'', Federal Supply Schedules
above $500,000, and Governmentwide acquisition contracts.
SEC. 4203. PROHIBITIONS ON THE USE OF LEAD SYSTEMS
INTEGRATORS.
(a) Prohibition on New Lead Systems Integrators.--(1)
Effective October 1, 2010, the head of an executive agency
may not award a new contract for lead systems integrator
functions in the acquisition of a major system.
(2) Prohibition on Lead Systems Integrators Beyond
Demonstration Level Phase.--Effective on the date of the
enactment of this Act, an executive agency may award a new
contract for lead systems integrator functions in the
acquisition of a major system only if--
(A) the contract for the major system does not proceed
beyond the demonstration phase-level; or
(B) the head of the agency determines in writing that it
would not be practicable to carry out acquisition without
continuing to use a contractor to perform lead systems
integrator functions and that doing so is in the best
interest of the agency.
(3) Requirements Relating to Determinations.--A
determination under paragraph (2)(A)--
(A) shall specify the reasons why it would not be
practicable to carry out the acquisition continuing to use a
contractor to perform lead integrator functions (including a
discussion of alternatives, such as the use of the agency
workforce, or a system engineering and technical assistance
contractor);
(B) shall include a plan for phasing out the use of
contracted lead systems integrator functions over the
shortest period of time consistent with the interest of the
government;
(C) may not be delegated below the level of the Chief
Acquisition Officer; and
(D) shall be provided to the Committee on Oversight and
Government Reform in the House of Representatives and the
Committee on Homeland Security and Governmental Affairs in
the Senate at least 45 days before the award of a contract
pursuant to the determination.
(b) Acquisition Workforce.--
(1) Requirement.--The head of an executive agency shall
ensure that the acquisition workforce is of the appropriate
size and skill level necessary--
(A) to accomplish inherently governmental functions related
to acquisition of major systems; and
(B) to effectuate the purpose of subsection (a) to minimize
and eventually eliminate the use of contractors to perform
lead systems integrator functions.
(2) Report.--The head of the agency shall annually include
an update on the progress made in complying with paragraph
(1) in the agency's Performance and Accountability Report.
(c) Exception for Contracts for Other Management
Services.--The head of an executive agency may continue to
award contracts for the procurement of services the primary
purpose of which is to perform acquisition support functions
with respect to the development or production of a major
system, if the following conditions are met with respect to
each such contract:
(1) The contract prohibits the contractor from performing
inherently governmental functions.
(2) The head of the agency responsible for the development
or production of the major system ensures that Federal
employees are responsible for determining courses of action
to be taken in the best interest of the government.
(3) The contract requires that the prime contractor for the
contract may not advise or recommend the award of a contract
or subcontract for the development or production of the major
system to an entity owned in whole or in part by the prime
contractor.
(d) Definitions.--In this section:
(1) Lead systems integrator.--The term ``lead systems
integrator'' means--
(A) a prime contractor for the development or production of
a major system, if the prime contractor is not expected at
the time of award to perform a substantial portion of the
work on the system and the major subsystems; or
(B) a prime contractor under a contract for procurement of
services the primary purpose of which to perform acquisition
functions closely associated with inherently governmental
functions with respect to the development or production of a
major system.
(2) Major system.--The term ``major system'' has the
meaning given such term in section 2302d of title 10, United
States Code.
(3) Demonstration phase level.--For purposes of this
section, the term ``demonstration phase level'' means--
(A) work performed prior to first article testing and
approval (as defined in part 9.3 of the Federal Acquisition
Regulation; or
(B) a level comparable to the level identified in
subparagraph (A) which the FAR Council determines, by
regulation, after consideration of the definition of low-rate
initial production (as defined in section 2400 of title 10,
United States Code.
(e) Inapplicability to Department of Defense.--This section
does not apply to the Department of Defense.
SEC. 4204. REGULATIONS ON EXCESSIVE PASS-THROUGH CHARGES.
(a) Regulations Required.--
(1) Not later than 180 days after the date of enactment of
this Act, the Federal Acquisition Regulation shall be amended
ensure that excessive pass-through charges on contracts or
(or task or delivery orders) are not paid by the Federal
Government.
(2) Scope of regulations.--The regulations prescribed under
this subsection--
(A) shall not apply to any firm, fixed-price contract or
subcontract (or task or delivery order) that is--
(i) awarded on the basis of adequate price competition; or
(ii) for the acquisition of a commercial item, as defined
in section 4(12) of the Office of Federal Procurement Policy
Act (41 U.S.C. 403(12)); and
(B) may include such additional exceptions as the Federal
Acquisition Regulation Council determines to be necessary in
the interest of the government.
(3) Definition.--In this section, the term ``excessive
pass-through charge'' means a charge to the Government by the
contractor or subcontractor that is for overhead or profit on
work performed by a lower-tier contractor or subcontractor
(other than charges for the direct costs of managing lower-
tier contracts and subcontracts and overhead and profit based
on such direct costs) and for which the contractor or
subcontractor adds no, or negligible, value to a contract or
subcontract.
(b) Inapplicability to Department of Defense.--This section
does not apply to the Department of Defense.
SEC. 4205. LINKING OF AWARD AND INCENTIVE FEES TO ACQUISITION
OUTCOMES.
(a) Guidance on Linking of Award and Incentive Fees to
Acquisition Outcomes.--Not later than 12 months after the
date of the enactment of this Act, the Federal Acquisition
Regulation shall be amended to provide executive agencies
with instructions, including definitions, on the appropriate
use of award and incentive fees in Federal acquisition
programs.
(b) Elements.--The regulations under subsection (a) shall--
(1) ensure that all new contracts using award fees link
such fees to acquisition outcomes (which shall be defined in
terms of program cost, schedule, and performance);
(2) establish standards for identifying the appropriate
level of officials authorized to approve the use of award and
incentive fees in new contracts;
(3) provide guidance on the circumstances in which
contractor performance may be judged to be ``excellent'' or
``superior'' and the percentage of the available award fee
which contractors should be paid for such performance;
(4) establish standards for determining the percentage of
the available award fee, if any, which contractors should be
paid for performance that is judged to be ``acceptable'',
``average'', ``expected'', ``good'', or ``satisfactory'';
(5) ensure that no award fee may be paid for contractor
performance that is judged to be below satisfactory
performance or performance that does not meet the basic
requirements of the contract;
(6) provide specific direction on the circumstances, if
any, in which it may be appropriate to roll over award fees
that are not earned in one award fee period to a subsequent
award fee period or periods;
(7) ensure consistent use of guidelines and definitions
relating to award and incentive fees across the Federal
Government;
(8) ensure that each executive agency--
(A) collects relevant data on award and incentive fees paid
to contractors; and
(B) has mechanisms in place to evaluate such data on a
regular basis;
(9) include performance measures to evaluate the
effectiveness of award and incentive fees as a tool for
improving contractor performance and achieving desired
program outcomes; and
(10) provide mechanisms for sharing proven incentive
strategies for the acquisition of different types of products
and services among contracting and program management
officials.
SEC. 4206. MINIMIZING ABUSE OF COMMERCIAL SERVICES ITEM
AUTHORITY.
(a) Regulations Required.--Not later than 180 days after
the date of the enactment of this Act, the Federal
Acquisition Regulation shall be amended for the procurement
of commercial services.
(b) Applicability of Commercial Procedures.--
(1) Services of a type sold in marketplace.--The
regulations modified pursuant to subsection (a) shall ensure
that services that are not offered and sold competitively in
substantial quantities in the commercial marketplace, but are
of a type offered and sold competitively in substantial
quantities in the commercial marketplace, may be treated as
commercial items for purposes of section 254b of title 41,
United States Code (relating to truth in negotiations), only
if the contracting officer determines in writing that the
offeror has submitted sufficient information to evaluate,
through price analysis, the reasonableness of the price for
such services.
(2) Information submitted.--To the extent necessary to make
a determination under paragraph (1), the contracting officer
may request the offeror to submit--
(A) prices paid for the same or similar commercial items
under comparable terms
[[Page H4769]]
and conditions by both government and commercial customers;
and
(B) if the contracting officer determines that the
information described in subparagraph (A) is not sufficient
to determine the reasonableness of price, other relevant
information regarding the basis for price or cost, including
information on labor costs, material costs, and overhead
rates.
(c) Time-and-Materials Contracts.--
(1) Commercial item acquisitions.--The regulations pursuant
to subsection (a) shall ensure that procedures applicable to
time-and-materials contracts and labor-hour contracts for
commercial item acquisitions may be used only for the
following:
(A) Services procured for support of a commercial item, as
described in section 4(12)(E) of the Office Federal
Procurement Policy Act (41 U.S.C. 403(12)(E)).
(B) Emergency repair services.
(C) Any other commercial services only to the extent that
the head of the agency concerned approves a determination in
writing by the contracting officer that--
(i) the services to be acquired are commercial services as
defined in section 4(12)(F) of the Office of Federal
Procurement Policy Act (41 U.S.C. 403(12)(F));
(ii) if the services to be acquired are subject to
subsection (b), the offeror of the services has submitted
sufficient information in accordance with that subsection;
(iii) such services are commonly sold to the general public
through use of time-and-materials or labor-hour contracts;
and
(iv) the use of a time-and-materials or labor-hour contract
type is in the best interest of the Government.
(2) Non-commercial item acquisitions.--Nothing in this
subsection shall be construed to preclude the use of
procedures applicable to time-and-materials contracts and
labor-hour contracts for non-commercial item acquisitions for
the acquisition of any category of services.
TITLE XLIII--ACQUISITION WORKFORCE
SEC. 4301. ACQUISITION WORKFORCE DEVELOPMENT FUND.
(a) Purpose.--The purpose of this section is to ensure that
there are resources available to recruit, hire, educate,
train and retain members of the Federal acquisition workforce
with the requisite competencies and skills to ensure that the
government receives best value property and services in its
acquisitions.
(b) Establishment of Fund.--Title III of the Federal
Property and Administrative Services Act of 1949 (40 U.S.C.
101, et seq) is amended by adding at the end the following
new section:
``SEC. 324. ACQUISITION WORKFORCE DEVELOPMENT FUND.
``(a) The Administrator of General Services shall establish
an acquisition workforce development fund.
``(1) The Administrator shall manage the fund through the
Federal Acquisition Institute to recruit, hire, educate,
train and retain members of the acquisition workforce of the
executive agencies other than the Department of Defense.
``(2) The Administrator, in consultation with the
Administrator for Federal Procurement Policy and the Chief
Acquisition Officers or Senior Procurement Executives, as
appropriate, of the executive agencies, other than the
Department of Defense, shall issue detailed guidance for the
administration and use of the Fund. Such guidance shall
include provisions--
``(A) requiring agencies to identify members of their
acquisition workforce consistent with section 433(i) of title
41.
``(B) identifying areas of need in the acquisition
workforce for which amounts in the Fund may be used,
including--
``(i) changes to the types of skills needed;
``(ii) incentives to retain qualified, experienced
personnel; and
``(iii) incentives for attracting new, high-quality
personnel;
``(C) describing the manner and timing for applications for
amounts in the Fund to be submitted;
``(D) describing the evaluation criteria to be used for
approving or prioritizing applications for amounts in the
Fund in any fiscal year; and
``(E) describing measurable objectives of performance for
determining whether amounts in the Fund are being used in
compliance with this section.
``(3) The Director of the Office of Management and Budget
shall be the approving official for any disbursements from
the Fund.
``(4) The costs of administering the fund, including the
direct and indirect costs of those employees, not to exceed 5
percent per annum, shall be paid out of the fund.
``(5) Amounts in the fund may not be used to pay the base
salary of any full-time equivalent position currently filled
as of date of enactment of the Clean Contracting Act of 2008.
``(b) There shall be credited to the acquisition workforce
development fund the following percentages of the value of
funds expended by executive agencies for service contracts,
other than services relating to research and development and
services relating to construction:
``(1) for fiscal year 2009, 0.5 percent.
``(2) for fiscal year 2010, 1 percent.
``(3) for fiscal year 2011, 1.5 percent.
``(4) for any fiscal year after fiscal year 2011, 2
percent.
``(c) The Director of the Office and Management and Budget
may reduce the amount to be credited upon a determination
that the funds being credited are excess to the needs of the
acquisition workforce development fund. In no event shall the
Director of the Office of Management Budget reduce the
percentage for any fiscal year below a percentage that
results in the deposit in a fiscal year of an amount equal to
the following
``(1) for fiscal year 2009, 75,000,000.
``(2) for fiscal year 2010, 100,000,000.
``(3) for fiscal year 2011, 125,000,000.
``(4) for an fiscal year after 2011, 150,000,000.
``(d) Not later than 30 days after the end of fiscal year
2008, and 30 days after the end of each fiscal year quarter
thereafter, the head of each executive agency shall remit to
the General Services Administration the amount required to be
credited to the fund with respect to the contracts, leases,
task and delivery order described in subsection (b).
``(e) The Administrator of General Services, through the
Office of the Chief Acquisition Officer, shall ensure that
funds collected under this section are not used for any
purposes other than the purposes specified in subsection (a).
``(f) Amounts credited to the fund shall be in addition to
funds requested and appropriated for salaries, benefits,
education and training for all current acquisition workforce
members.
``(g) Amounts credited to the fund shall remain available
until expended.
``(h) Not later than 60 days after the end of each fiscal
year beginning with fiscal year 2008, the Administrator of
General Services shall submit to the congressional committees
identified in subsection (i) a report on the operation of the
fund during such fiscal year. Each report shall include, for
the fiscal year covered by such report, the following:
``(1) A statement of the amounts remitted to the
Administrator for crediting to the Fund for such fiscal year
by each executive agency and a statement of the amounts
credited to the Fund.
``(2) A description of the expenditures made from the Fund,
including the purpose of such expenditures.
``(3) A description and assessment of improvements in the
Federal acquisition workforce resulting from such
expenditures, including the extent to which the fund has been
used to increase the number of individuals in the acquisition
workforce relative to the number of individuals in the
acquisition workforce as of the date of enactment.
``(4) Recommendations for additional authorities to fulfill
the purpose of the Fund.
``(5) A statement of the balance remaining in the Fund at
the end of such fiscal year.
``(i) The report required by subsection (h) shall be
submitted to the Committee on Oversight and Government Reform
of the House of Representatives; the Committee on Homeland
Security and Governmental Affairs of the Senate; and the
Committees on Appropriations of the House of Representatives
and the Senate.
``(j) No expired balances appropriated prior to the date of
the enactment of the Clean Contracting Act of 2008 may be
used to make any payment to the Acquisition Workforce
Development Fund.''.
(c) Exception.--This section and the amendments made by
this section shall not apply to the acquisition workforce of
the Department of Defense.
SEC. 4302. CONTINGENCY CONTRACTING CORPS.
The Office of Federal Procurement Policy Act (41 U.S.C. 403
et seq.), as amended by section 102, is further amended by
adding at the end the following new section:
``SEC. 44. CONTINGENCY CONTRACTING CORPS.
``(a) Establishment.--The Administrator of General Services
in consultation with the Director of the Office of Management
and Budget, the Secretary of Defense and the Secretary of
Homeland Security, shall establish a Governmentwide
Contingency Contracting Corps (in this section, referred to
as the `Corps'). The members of the Corps shall be available
for deployment in responding to an emergency or major
disaster, or a contingency operation, within or outside the
continental United States.
``(b) Applicability.--The authorities provided in this
section apply with respect to any procurement of property or
services by or for an executive agency that, as determined by
the head of such executive agency, are to be used--
``(1) in support of a contingency operation as defined in
section 101(a)(13) of title 10, United States Code; or
``(2) to respond to an emergency or major disaster as
defined in section 5122 of title 41, United States Code.
``(c) Membership.--Membership in the Corps shall be
voluntary and open to all Federal employees and uniformed
members of the Armed Services, who are currently members of
the Federal acquisition workforce. As a condition precedent
to membership in the Corps, each volunteer will execute a
mobility agreement consistent with the provisions included in
sections 3371 through 3375 of title 5, United States Code.
``(d) Education and Training.--The Director of the Federal
Acquisition Institute, in consultation with the Chief
Acquisition Officers Council shall establish educational and
training requirements for members of the Corps, and shall pay
for these additional requirements from funds available in the
acquisition workforce development fund or the Department of
Defense Acquisition Workforce Development Fund.
``(e) Clothing and Equipment.--The Administrator shall
identify any necessary clothing and equipment requirements,
and shall pay for this clothing and equipment from funds
available in the acquisition workforce development fund or
the Department of
[[Page H4770]]
Defense Acquisition Workforce Development Fund.
``(f) Salary.--The salaries for members of the Corps shall
be paid by their parent agencies out of funds available.
``(g) Authority To Deploy the Corps.--The Director of the
Office of Management and Budget shall have the authority to
determine when members of the Corps shall be deployed, in
consultation with the head of the agency or agencies
employing the members to be deployed.
``(h) Annual Report.--
``(1) In general.--The Administrator of General Services
shall provide to the Committee on Homeland Security and
Governmental Affairs and the Committee on Armed Services of
the Senate and the Committee on Oversight and Government
Reform and the Committee on Armed Services of the House of
Representatives an annual report on the status of the
Contingency Contracting Corps as of September 30 of each
fiscal year.
``(2) Content.--At a minimum, each report under paragraph
(1) shall include the number of members of the Contingency
Contracting Corps, the total cost of operating the program,
the number of deployments of members of the program, and the
performance of members of the program in deployment.''.
TITLE XLIV--ANTI-FRAUD PROVISIONS
SEC. 4401. PROTECTION FOR CONTRACTOR EMPLOYEES FROM REPRISAL
FOR DISCLOSURE OF CERTAIN INFORMATION.
(a) Increased Protection From Reprisal.--Subsection (a) of
section 315 of the Federal Property and Administrative
Services Act of 1949 (41 U.S.C. 265(a), is amended--
(1) by striking ``disclosing to a Member of Congress'' and
inserting ``disclosing to a Member of Congress, a
representative of a committee of Congress, an Inspector
General, the Government Accountability Office, an employee of
an executive agency responsible for contract oversight or
management,''; and
(2) by striking ``information relating to a substantial
violation of law related to a contract (including the
competition for or negotiation of a contract)'' and inserting
``information that the employee reasonably believes is
evidence of gross mismanagement of an executive agency
contract or grant, a gross waste of executive agency funds, a
substantial and specific danger to public health or safety,
or a violation of law related to an executive agency contract
(including the competition for or negotiation of a contract)
or grant''.
(b) Clarification of Inspector General Determination.--
Subsection (b) of such section is amended--
(1) by inserting ``(1)'' after ``Investigation of
Complaints.--'' and
(2) by adding at the end the following new paragraph:
``(2)(A) Except as provided under subparagraph (B), the
Inspector General shall make a determination that a complaint
is frivolous or submit a report under paragraph (1) within
180 days after receiving the complaint.
``(B) If the Inspector General is unable to complete an
investigation in time to submit a report within the 180-day
period specified in subparagraph (A) and the person
submitting the complaint agrees to an extension of time, the
Inspector General shall submit a report under paragraph (1)
within such additional period of time as shall be agreed upon
between the Inspector General and the person submitting the
complaint.''.
(c) Acceleration of Schedule for Denying Relief or
Providing Remedy.--Subsection (c) of such section is amended
in paragraph (1), by striking ``If the head of an executive
agency determines that a contractor has subjected a person to
a reprisal prohibited by subsection (a), the head of the
agency may'' and inserting after ``(1)'' the following: ``Not
later than 30 days after receiving an Inspector General
report pursuant to subsection (b), the head of an executive
agency concerned shall determine whether there is sufficient
basis to conclude that the contractor concerned has subjected
the complainant to a reprisal prohibited by subsection (a)
and shall either issue an order denying relief or shall''.
(d) Definitions.--Subsection (e) of such section is amended
in paragraph (2), by inserting ``or a grant'' after ``a
contract''.
SEC. 4402. MANDATORY FRAUD REPORTING.
(a) Amendment of Federal Acquisition Regulation.--The
Federal Acquisition Regulation shall be amended within 180
days after the date of the enactment of this Act pursuant to
FAR Case 2007-006 (as published at 72 Fed Reg. 64019,
November 14, 2007) or any follow-on FAR case to include
provisions that require timely notification by Federal
contractors of violations of Federal criminal law or
overpayments in connection with the award or performance of
covered contracts or subcontracts, including those performed
outside the United States and those for commercial items.
(b) Covered Contract Defined.--In this section, the term
``covered contract'' means any contract in an amount greater
than $5,000,000 and more than 120 days in duration.
SEC. 4403. ACCESS OF GENERAL ACCOUNTING OFFICE TO CONTRACTOR
EMPLOYEES.
(a) Civilian Agencies.--Section 304C of the Federal
Property and Administrative Services Act of 1949 (41 U.S.C.
254d) is amended in subsection (c)(1) by inserting after
``records'' ``,or interview any employee,''.
(b) Defense Agencies.--Section 2313 of title 10, United
States Code, is amended in subsection (c)(1) by inserting
after ``records'' ``, or interview any employee,''.
SEC. 4404. PREVENTING CONFLICTS OF INTEREST.
(a) Organizational Conflicts of Interest.--Not later than
12 months after the date of the enactment of this Act, the
Administrator of the Office of Federal Procurement Policy
shall review the Federal Acquisition Regulation to determine
whether it contains sufficiently rigorous, comprehensive, and
uniform Governmentwide policies to prevent and mitigate
organizational conflicts of interest in Federal contracting.
In reviewing such regulations, the Administrator and the
Federal Acquisition Regulatory Council, in consultation with
the Office of Government Ethics, shall, at a minimum, make
appropriate revisions to the regulations to--
(1) establish a standard organizational conflict of
interest clause, or a set of standard organizational conflict
of interest clauses, for inclusion in solicitations and
contracts that set forth the contractor's responsibilities
with respect to its employees, subcontractors, partners, and
any other affiliated organizations or individuals;
(2) address conflicts that may arise in the context of
developing requirements and statements of work, the selection
process, and contract administration;
(3) ensure that adequate organizational conflict of
interest safeguards are enacted in situations in which
contractors are employed by the Federal Government to oversee
other contractors or are hired to assist in the acquisition
process; and
(4) ensure that any policies or clauses developed address
conflicts of interest that may arise from financial
interests, unfair competitive advantages, and impaired
objectivity.
(b) Personal Conflicts of Interest.--Not later than 12
months after the date of the enactment of this Act, the
Federal Acquisition Regulation shall be amended to establish
uniform, Governmentwide policies to prevent personal
conflicts of interest by contractor employees in Federal
contracting. In developing such regulations, the Federal
Acquisition Regulatory Council, in consultation with the
Office of Government Ethics, shall, at a minimum--
(1) develop a standard contractor employee personal
conflicts of interest clause or a set of standard clauses for
inclusion in solicitations and contracts that set forth the
contractor's responsibility to ensure that employees who are
performing contracted services for the Federal Government are
free of personal conflicts of interest;
(2) identify the contracting methods, types and services
that raise heightened concerns for potential conflicts of
interest; and
(3) establish specified principles, examples, a definition
of personal conflicts of interest relevant to contractor
employees working on Federal Government contracts, specific
prohibitions, and where applicable, greater disclosure for
certain contractor employees, that will accomplish the end
objective of ethical behavior.
(c) Best Practices.--The Administrator of the Office of
Federal Procurement Policy, in consultation with the Office
of Governmentwide Ethics, shall develop and maintain a
repository of best practices relating to the prevention and
mitigation of organizational and personal conflicts of
interest.
TITLE XLV--ENHANCED CONTRACT TRANSPARENCY
SEC. 4501. DISCLOSURE OF CEO SALARIES.
(a) Disclosure Requirements.--Section 2(b)(1) of the
Federal Funding Accountability and Transparency Act (Public
Law 109-282; 31 U.S.C. 6101 note) is amended--
(1) by striking ``and'' at the end of subparagraph (E);
(2) by redesignating subparagraph (F) as subparagraph (G);
and
(3) by inserting after subparagraph (E) the following new
subparagraph:
``(F) the names and total compensation of the five most
highly compensated officers of the entity if--
``(i) the entity in the preceding fiscal year received--
``(I) 80 percent or more of its annual gross revenues in
Federal awards; and
``(II) $25,000,000 or more in annual gross revenues from
Federal awards; and
``(ii) the public does not have access to information about
the compensation of the senior executives of the entity
through periodic reports filed under section 13(a) or 15(d)
of the Securities Exchange Act of 1934 (15 U.S.C. 78m(a),
78o(d)) or section 6104 of the Internal Revenue Code of
1986.''.
(b) Regulations Required.--The Director of the Office of
Management and Budget shall promulgate regulations to
implement the amendment made by this title. Such regulations
shall include a definition of ``total compensation'' that is
consistent with regulations of the Securities and Exchange
Commission at section 402 of part 229 of title 17 of the Code
of Federal Regulations (or any subsequent regulation).
SEC. 4502. DATABASE FOR CONTRACTING OFFICERS AND SUSPENSION
AND DEBARMENT OFFICIALS.
(a) In General.--Subject to the authority, direction, and
control of the Director of the Office of Management and
Budget, the Administrator of General Services shall establish
and maintain a database of information regarding integrity
and performance of persons awarded Federal contracts and
grants for use by Federal officials having authority over
contracts and grants.
[[Page H4771]]
(b) Persons Covered.--The database shall cover any person
awarded a Federal contract or grant if any information
described in subsection (c) exists with respect to such
person.
(c) Information Included.--With respect to a person awarded
a Federal contract or grant, the database shall include
information (in the form of a brief description) for at least
the most recent 5-year period regarding--
(1) any civil or criminal proceeding, or any administrative
proceeding to the extent that such proceeding results in both
a finding of fault on the part of the person and the payment
of restitution to a government of $5,000 or more, concluded
by the Federal Government or any State government against the
person, and any amount paid by the person to the Federal
Government or a State government;
(2) all Federal contracts and grants awarded to the person
that were terminated in such period due to default;
(3) all Federal suspensions and debarments of the person in
that period;
(4) all Federal administrative agreements entered into by
the person and the Federal Government in that period to
resolve a suspension or debarment proceeding and, to the
maximum extent practicable, agreements involving a suspension
or debarment proceeding entered into by the person and a
State government in that period; and
(5) all final findings by a Federal official in that period
that the person has been determined not to be a responsible
source under either subparagraph (C) or (D) of section 4(7)
of the Office of Federal Procurement Policy Act (41 U.S.C.
403(7)).
(d) Requirements Relating to Information in Database.--
(1) Direct input and update.--The Administrator shall
design and maintain the database in a manner that allows the
appropriate officials of each Federal agency to directly
input and update in the database information relating to
actions it has taken with regard to contractors or grant
recipients.
(2) Timeliness and accuracy.--The Administrator shall
develop policies to require--
(A) the timely and accurate input of information into the
database;
(B) notification of any covered person when information
relevant to the person is entered into the database; and
(C) an opportunity for any covered person to append
comments to information about such person in the database.
(e) Availability.--
(1) Availability to all federal agencies.--The
Administrator shall make the database available to all
Federal agencies.
(2) Availability to the public.--The Administrator shall
make the database available to the public by posting the
database on the General Services Administration website.
(3) Limitation.--This subsection does not require the
public availability of information that is exempt from public
disclosure under section 552(b) of title 5, United States
Code.
SEC. 4503. REVIEW OF DATABASE.
(a) Requirement to Review Database.--Prior to the award of
a contract or grant, an official responsible for awarding a
contract or grant shall review the database established under
section 2.
(b) Requirement to Document Present Responsibility.--In the
case of a prospective awardee of a contract or grant against
which a judgment or conviction has been rendered more than
once within any 3-year period for the same or similar
offences, if each judgment or conviction is a cause for
debarment, the official responsible for awarding the contract
or grant shall document why the prospective awardee is
considered presently responsible.
SEC. 4504. DISCLOSURE IN APPLICATIONS.
(a) Requirement.--Not later than 180 days after the date of
the enactment of this Act, Federal regulations shall be
amended to require that in applying for any Federal grant or
submitting a proposal or bid for any Federal contract a
person shall disclose in writing information described in
section 2(c).
(b) Covered Contracts and Grants.--This section shall apply
only to contracts and grants in an amount greater than the
simplified acquisition threshold, as defined in section 4(11)
of the Office of Federal Procurement Policy Act (41 U.S.C.
401(11)).
SEC. 4505. ROLE OF INTERAGENCY COMMITTEE.
(a) Requirement.--The Interagency Committee on Debarment
and Suspension shall--
(1) resolve issues regarding which of several Federal
agencies is the lead agency having responsibility to initiate
suspension or debarment proceedings;
(2) coordinate actions among interested agencies with
respect to such action;
(3) encourage and assist Federal agencies in entering into
cooperative efforts to pool resources and achieve operational
efficiencies in the Governmentwide suspension and debarment
system;
(4) recommend to the Office of Management and Budget
changes to Government suspension and debarment system and its
rules, if such recommendations are approved by a majority of
the Interagency Committee;
(5) authorize the Office of Management and Budget to issue
guidelines that implement those recommendations;
(6) authorize the chair of the Committee to establish
subcommittees as appropriate to best enable the Interagency
Committee to carry out its functions; and
(7) submit to the Congress an annual report on--
(A) the progress and efforts to improve the suspension and
debarment system;
(B) member agencies' active participation in the
committee's work; and
(C) a summary of each agency's activities and
accomplishments in the Governmentwide debarment system.
(b) Definition.--The term ``Interagency Committee on
Debarment and Suspension'' means such committee constituted
under sections 4 and 5 and of Executive Order 12549.
SEC. 4506. AUTHORIZATION OF INDEPENDENT AGENCIES.
Any agency, commission, or organization of the Federal
Government to which Executive Order 12549 does not apply is
authorized to participate in the Governmentwide suspension
and debarment system and may recognize the suspension or
debarment issued by an executive branch agency in its own
procurement or assistance activities.
SEC. 4507. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated to the
Administrator of General Services such funds as may be
necessary to establish the database described in section 2.
SEC. 4508. REPORT TO CONGRESS.
(a) Report Required.--Not later than 180 days after the
date of the enactment of this Act, the Administrator of
General Services shall submit to Congress a report.
(b) Contents of Report.--The report shall contain the
following:
(1) A list of all databases that include information about
Federal contracting and Federal grants.
(2) Recommendations for further legislation or
administrative action that the Administrator considers
appropriate to create a centralized, comprehensive Federal
contracting and Federal grant database.
SEC. 4509. IMPROVEMENTS TO THE FEDERAL PROCUREMENT DATA
SYSTEM.
(a) Enhanced Transparency on Interagency Contracting and
Other Transactions.--Not later than 12 months after the date
of the enactment of this Act, the Director of the Office of
Management and Budget shall direct appropriate revisions to
the Federal Procurement Data System or any successor system
to facilitate the collection of complete, timely, and
reliable data on interagency contracting actions and on
transactions other than contracts, grants, and cooperative
agreements issued pursuant to section 2371 of title 10,
United States Code, or similar authorities. The Director
shall ensure that data, consistent with what is collected for
contract actions, is obtained on--
(1) interagency contracting actions, including data at the
task or delivery-order level; and
(2) other transactions, including the initial award and any
subsequent modifications awarded or orders issued.
(b) Amendment.--Subsection (d) of section 19 of the Office
of Federal Procurement Policy Act (41 U.S.C. 417(d)) is
amended to read as follows:
``(d) Transmission and Data Entry of Information.--The head
of each executive agency shall ensure the accuracy of the
information included in the record established and maintained
by such agency under subsection (a) and shall timely transmit
such information to the General Services Administration for
entry into the Federal Procurement Data System referred to in
section 6(d)(4), or any successor system.''.
The Acting CHAIRMAN. Pursuant to House Resolution 1218, the gentleman
from California (Mr. Waxman) and a Member opposed each will control 10
minutes.
The Chair recognizes the gentleman from California.
{time} 1600
Mr. WAXMAN. Mr. Chairman, this Congress, the House and Senate, have
passed important Federal contracting reforms, but neither body has
assembled them into a comprehensive package. My ``clean contracting''
amendment to the National Defense Authorization Act consolidates these
provisions into a single reform measure.
I want to particularly thank Chairman Skelton for working with me to
help bring this amendment before the House today. He has been a
tremendous partner in the fight to root out waste, fraud and abuse.
The clean contracting amendment would require agencies to enhance
competition in contracting, limit the use of abuse-prone contracts,
rebuild the Federal acquisition workforce, strengthen antifraud
measures, and increase transparency in Federal contracting.
The provisions of the amendment are based on provisions that have
already passed the House or Senate, or are government-wide versions of
Defense provisions that passed in last year's DOD authorization. They
respond to procurement abuses that the Oversight Committee, the Armed
Services Committees, and other committees have identified in hearings
and investigative reports.
The egregious procurement practices that have occurred in Iraq and in
response to Hurricane Katrina and at the
[[Page H4772]]
Department of Homeland Security need to be halted. They may enrich
companies like Halliburton and Blackwater, but have squandered billions
of dollars that belong to the taxpayer.
This amendment says that Congress is serious about stopping waste,
fraud and abuse. One important provision deals directly with no-bid
contracts and requires agencies to develop plans to promote
competition. This provision is needed because the value of contracts
awarded without full and open competition has more than tripled since
2000, rising from $67 billion in 2000 to almost $207 billion in 2006.
Full and open competition provides the government with its best
guarantee that tax dollars are being spent economically and
efficiently.
Another important measure would limit the length of no-bid contracts
awarded in emergencies to 9 months. This provision would end the abuses
that occurred after Hurricane Katrina when many ``emergency'' contracts
were allowed to continue for years.
The amendment would also curb the use of cost-plus contracts, which
provide contractors with little incentive to control costs. Spending
under this kind of contract grew over 75 percent between 2000 and 2005.
Another important provision would prohibit contractors from charging
excessive mark-up charges for work done by subcontractors. This would
prevent the infamous ``blue roof'' scandal following Hurricane Katrina
where taxpayers paid almost $2,500 for something that actually cost
$300.
Other vital provisions of this amendment would provide whistleblower
protections to civilian contractor employees, fund increases in the
acquisition workforce, and prevent the abuse of interagency contracts,
as was the case at Abu Ghraib, where interrogators were hired using an
Interior Department contract for information technology.
The amendment also includes three provisions which have recently
passed the House under suspension of the rules. One, authored by
Representative Welch, requires mandatory reporting of fraud by
contractors. Another, based on the bill by Representative Murphy,
requires the disclosure of CEO salaries if a company makes most of its
money from government funds. The third, based on a bill authored by
Representative Maloney, requires the development of a database of
suspension and debarment information. I want to commend these Members
for their hard work on these issues.
I also want to particularly thank Chairwoman Velazquez of the Small
Business Committee for working with us to perfect some of the language
in this bill.
I urge Members to support the Clean Contracting amendment.
I reserve the balance of my time.
Mr. DAVIS of Virginia. I rise in opposition to the amendment.
The Acting CHAIRMAN. The gentleman from Virginia is recognized for 10
minutes.
Mr. DAVIS of Virginia. Mr. Chairman, I rise today to speak on the
amendment filed by Chair Waxman to the FY09 Defense Authorization Act.
This amendment is an amalgamation of various government contractor-
related proposals, many of which are currently working their way
through the legislative process. Most of the more than 20 components of
this amendment represent attempts to, quote, reform the Federal
Government's acquisition system through restrictions and reports geared
towards greater regulation and oversight.
More specifically, this amendment would limit the duration of
contracts awarded under unusual and compelling conditions, require
agencies to develop plans for the use of sole-source contracts,
restrict the use of lead system integrators in acquisitions of major
systems, restrict the acquisition of commercial services, and disclose
the salaries of executives of privately held firms that are receiving
government funds.
While I remain skeptical these provisions will do much to address the
most serious problems facing our Federal acquisition system today, I
very much appreciate that Chairman Waxman has worked with me to revise
the provisions before bringing them to the floor to help ensure they
don't impose undesired and unintended burdens on the acquisition
system. In addition, I am pleased that the amendment includes a
provision aimed at promoting a stronger and more robust Federal
acquisition workforce.
Section 4301 of the amendment creates a government-wide acquisition
workforce development fund funded by a percentage of the amount
expended by agencies for service contracts to be used for the
recruitment, the hiring, the training, and the retraining of our
Federal acquisition workforce.
He noted that there are too many cost-plus types of contracts. This
contract vehicle is only utilized when the government isn't sure of its
requirements. How in the world can you fixed-price something if you
don't know what you need and what your final requirements are? Having a
better acquisition workforce to better define these requirements and
having them in touch with their client I think is the best way to get
rid of these cost-plus contracts which the chairman and others have
criticized rather than trying to legislate into law limitations.
In fact, if this amendment were only to include the provisions in the
acquisition workforce title we would be much better off because I think
that does more to address the issues in government contracting and the
excesses and the problems than anything else in here.
An endless stream of reports, an endless stream of restrictions and
limitations really does very little to help our stressed Federal
acquisition workforce cope with the increasingly complex demands of the
Federal Government for goods and services.
Other provisions in the amendment, however, cause me more concern.
Section 4403 of the amendment would give the Government Accountability
Office the unprecedented and the new authority to interview private
individuals employed by Federal Government contractors in order to get
information during its audits. There are serious issues involved with
forcing private citizens to talk to government auditors. What happens
if the person doesn't want to talk? Can the GAO use its subpoena power?
And who within the GAO would have such authority to order private
citizens to talk? A senior GAO official? Any GAO functionary? A mid-
level official? This is not a provision which has been discussed or
debated in Congress. In my judgment, it is not ready for prime time. I
think it has some merit, but I think it's going to need really some
additional debate and research before it's implemented into law.
When the chairman intended to include this provision in a bill
recently being considered by our committee, he withdrew it when I
requested him to do so. I assumed at the time we would discuss and
debate it before bringing it to the House floor. I'm disappointed that
it has been unilaterally included in the amendment, which would
otherwise, I feel, be all right to this authorization bill.
Further, Mr. Chairman, many other concerns that I have with this
amendment are the same concerns I expressed last year when the House
took up H.R. 1362, the chairman's Accountability in Contracting Act.
The Federal acquisition system has been under considerable stress in
recent years because of the extraordinary pressures of a shrinking
acquisition workforce combined with an increasing reliance on Federal
contractors for major activities such as providing logistical support
for our troops in Iraq. This strain has resulted in a series of
management problems that have been trumpeted by the press and exploited
by opponents of the system. Nevertheless, the systems work pretty well,
and the vast majority of government acquisitions have been conducted
properly. And in the cases where we have found fraud, the system has
uncovered these in many cases, audits have uncovered these, and we've
been able to deal with them.
I remain concerned that controls, reports, procedures and
restrictions will not go very far in addressing the most serious
challenges facing us today. Reverting to the bloated system of the
past, weighted down with ``process,'' will not help the Federal
Government acquire the best value goods and services the commercial
market has to offer and our government so desperately needs and our
taxpayers can afford.
As I have said many times before, reverting to the past under the
rubric of fraud, waste and abuse and ``cleaning up'' the system may
provide flashy
[[Page H4773]]
sound bites and play well back home, but it doesn't give us the world-
class acquisition systems that Federal taxpayers deserve.
More controls and procedures will not remedy poorly defined
requirements or provide us with a sufficient number of Federal
acquisition personnel with the right skills to select the best
contractor and the best contracting vehicles to get there and manage
the subsequent performance of those contracts.
Despite these concerns, I don't intend to ask for a rollcall, but I
intend to oppose this amendment. And I hope to be able to work with
Chairman Waxman and other interested stakeholders on these provisions
in conference to try to make sure that we're not imposing unnecessary
burdens on our Federal acquisition system.
Mr. HUNTER. Would the gentleman yield?
Mr. DAVIS of Virginia. I would be happy to yield to my friend.
Mr. HUNTER. I thank the gentleman for yielding.
You know, one aspect of this that I thought was troubling also was
the fact that private contractors will have to disclose the amounts of
money that their particular people make. That's going to go out,
presumably, to others; competitors will see that. These aren't publicly
held companies. I think that that's an intrusion we don't necessarily
need to make.
Mr. DAVIS of Virginia. Let me say to my friend, this was a concern,
but in working with Mr. Murphy, the author of this provision, we feel
that in the light that--the sirens will go out, not just for
contractors, but for grantees, too, on Federal grants and the like. And
it will go out not under the rubric of just contracts, but be available
on a Federal database which the Congress approved last year.
So I appreciate Mr. Murphy working with us on that. We're, at this
point, comfortable with that provision, having massaged it through the
committee process.
Mr. Chairman, I reserve the balance of my time.
Mr. WAXMAN. Mr. Chairman, I do want to express my appreciation to
Ranking Member Davis for the hard work and contribution; he helped us
in fashioning so much of this legislation.
At this point, I yield 1\1/2\ minutes to the gentleman from
Connecticut, who is an author of an important provision in this bill
and is a very valued member of our committee.
Mr. MURPHY of Connecticut. I would like to thank Chairman Waxman for
putting this very valuable amendment before us today. We've spent an
awful lot of time on the Government Oversight Committee looking into
the contracting practice of the Federal Government. I think this goes a
very long way towards safeguarding our taxpayer dollars, and also
shining some transparency on it, which is the piece of the amendment
that I would like to speak on today.
This amendment includes legislation that passed the House on voice
vote several weeks ago, the Government Funding Transparency Act. The
act requires that companies that make almost every penny of their
revenue from the Federal Government, essentially quasi-public agencies,
requires them to disclose to the American public the amount of profit
that they're taking off of those contracts. These companies making over
80 percent of their money shouldn't be allowed to hide this type of
financial data from the American taxpayers.
I would like to thank Ranking Member Davis for working through this
bill as it moved through the committee process. This really has moved
from a contracting bill to a disclosure bill, one that I think is going
to give the American public and this Congress the access to the data
that they should have when we are awarding large contracts to
essentially government agencies that don't have the requirements that
other agencies and public vendors do.
I would like to thank Chairman Skelton as well for working through
this amendment as we brought it forth today. I support its passage and
the underlying legislation.
Mr. DAVIS of Virginia. Let me just say to my friends, if we really
want to reform the acquisition system, the most important thing we can
do is, first of all, start with a better job of defining our
requirements on these particular vehicles and then recruiting and
retaining acquisition professionals, the best and the brightest we can
find. And when we do that, that means we have to pay them
appropriately, we have to train them appropriately, we have to give
them the appropriate incentives and bonuses. Think of a multibillion-
dollar acquisition that comes in on time and under budget. That is
worth its weight in gold. We have had so many of these vehicles that
have gone sideways on us and end up costing us billions of dollars. It
is better to spend a little money up front training the right people to
oversee these contracts, define the requirements along the way. This
amendment does do something in that regard. I think we need to continue
to work in that direction.
I look forward to working with my friends on other amendments as we
can strengthen the acquisition system.
Mr. Chairman, I yield back the balance of my time.
Mr. WAXMAN. Mr. Chairman, this amendment, which consolidates a number
of other provisions, has within it a provision that the House also
passed on the suspension calendar authored by the gentleman from
Vermont, Congressman Welch. I yield 1\1/2\ minutes to him at this
point.
Mr. WELCH of Vermont. I want to thank Chairman Skelton for his
leadership, Chairman Waxman, Mr. Hunter and Mr. Davis.
I have been listening to Mr. Davis, and he makes a good point; you
have to, when you're spending $1 trillion on a war--and we're pushing
that--have a good acquisition team. But that really begs the question,
we have to have oversight. And there has been documented an astonishing
amount of waste, fraud and absolute rip-off in this expenditure of
close to $1 trillion. And that does require some simple reporting
requirements.
Mr. Murphy's amendment, where private companies that go into
contracts from $700,000, and then when the war starts over the next 4
years to $1 billion, that 10 percent cut for the owner of that company,
or the owners, the public has a right to know. Sunlight is going to put
some limits on how much profit is reasonable when our soldiers are
working so hard for so little.
Secondly, when we have no-bid contracts--and these have proliferated
so that they are about over $1 trillion--and the companies that have
those contracts become aware of fraud, why is it not plain common sense
that that company would have the obligation immediately to report to
the American government their knowledge of fraud so that we can save
taxpayer dollars, particularly when these involve national security
contracts, oftentimes with things that are going to protect our troops?
We owe them no less and we owe our taxpayers no less. So I thank the
gentlemen for the work that they've done to restore fiscal
responsibility.
{time} 1615
Mr. WAXMAN. Mr. Chairman, I would like to yield 1\1/2\ minutes to a
very valuable member of our Oversight Committee who has been a watchdog
to make sure that we are not wasting taxpayers' dollars, the gentleman
from Tennessee (Mr. Cooper).
Mr. COOPER. Mr. Chairman, at its simplest level, the House Armed
Services Committee is the military's best friend, the best friend to
the soldier, the sailor, the airman, and the marine. And under the
leadership of Chairman Skelton and Ranking Member Hunter, we are
demonstrating this once again with this bill.
The House on Oversight and Government Reform Committee, Mr. Waxman's
committee, is the taxpayer's best friend. And it's very important that
these committees work together, as they are doing today, to make
government work both for the taxpayer and for the military. And that's
what these clean contracting amendments do.
It's an amazing group of amendments to try to minimize, for example,
sole source contracts. Why should the government have to add all this
business to one company without competitive bidding unless it's a
national emergency? This amendment takes care of that why should we
have cost-plus contracts? Those guarantee a profit whether it's
deserved or not. We try to minimize those things.
This is an excellent example of cooperative work between committees,
[[Page H4774]]
really forgetting jurisdictional lines, and making government work for
the people back home.
I'd also like to thank Mr. Waxman in particular because he pointed
out something that even the excellent staff of the House could not have
been able to see so far, which is workmen's compensation for defense
contractors, an issue that we had not delved into. But just last week,
in an excellent set of hearings that Chairman Waxman called, we were
able to produce legislative language that, thankfully, the House has
accepted and to get this reform underway already. So in just 1 week's
time, we are solving this problem for the taxpayer.
I thank the gentleman.
Mr. WAXMAN. Mr. Chairman, I yield the balance of my time to my very
good friend and respected leader, the chairman of the Committee on
Armed Services (Mr. Skelton).
Mr. SKELTON. I thank the gentleman for yielding. I also wish to
compliment him on this amendment.
Mr. Chairman, there was a lot of hard work that went into this, and
what it would do is add the Clean Contracting Act of 2008 to national
security and defense. It compiles provisions that have already passed
the House or would extend acquisition reforms passed for the Department
of Defense in prior authorization bills in identical form. It also adds
a couple of new measures.
This Waxman amendment complements last year's bill in which we
extended several of the reforms beyond the Department of Defense, and
it also included several bills that have already passed, such as the
Contractors and Federal Spending Accountability Act offered by
Representative Maloney, the Close the Contractor Fraud Loophole Act
offered by Mr. Welch, and the Government Contractor Accountability Act
offered by Mr. Chris Murphy.
There's a lot of hard work that goes into this. And we are always
going to have difficulties in the acquisition process and the
contracting process. But this is a major step in that direction, and I
favor it.
Mrs. MALONEY of New York. Mr. Chairman, I rise today in strong
support of the amendment offered by the distinguished chairman of the
Oversight and Government Reform Committee, Representative Waxman, that
would make important reforms to the contracting process.
Particularly, I want to note my support for provisions in the
amendment based on my legislation which passed the House last month,
H.R. 3033, the ``Contractors and Federal Spending Accountability Act.''
That bill and this amendment would fortify the current federal
procurement system by establishing a centralized and comprehensive
database on actions taken against federal contractors and assistance
participants. It requires the contracting officer to document why a
prospective awardee is deemed responsible if that awardee has two or
more offenses which would be cause for debarment within a 3-year
period. Additionally, it improves and clarifies the role of the
Interagency Committee on Debarments and Suspension, and requires the
Administrator of General Services to report to Congress within 180 days
with recommendations for further action to create the database.
Currently, federal agency officials lack the information that they
need to protect our business interests and taxpayers' dollars. This
amendment will make it easier for these individuals to prevent those
who repeatedly violate federal law from receiving millions of dollars
from the federal government.
As a New York City Councilwoman, I successfully led an effort to
implement a similar system. This system has aided the City of New York
tremendously, and it has helped to prevent habitual bad actors and
felons from being awarded city contracts.
The United States is the largest purchaser of goods and services in
the world spending more than $419 billion on procurement awards in
FY2006 and $440 billion on grants in FY2005. It is Congress's
responsibility to ensure that the taxpayers' dollars are used wisely
and not wasted by some contractors who are more interested in lining
their pockets with profits than providing the American people with the
goods and services they are paying for.
I also want to acknowledge Representative Mark Udall for his
supportive efforts to improve the federal contracting system, and I
urge my colleagues to support this amendment.
The Acting CHAIRMAN (Mr. Pomeroy). The question is on the amendment
offered by the gentleman from California (Mr. Waxman).
The amendment was agreed to.
Amendment No. 26 Offered by Ms. Lee
The Acting CHAIRMAN. It is now in order to consider amendment No. 26
printed in House Report 110-666.
Ms. LEE. Mr. Chairman, I have an amendment at the desk.
The Acting CHAIRMAN. The Clerk will designate the amendment.
The text of the amendment is as follows:
Amendment No. 26 offered by Ms. Lee:
At the end of subtitle B of title XII of the bill, add the
following new section:
SEC. 12XX. LIMITATION ON CERTAIN STATUS OF FORCES AGREEMENTS
BETWEEN THE UNITED STATES AND IRAQ.
No provision of any agreement between the United States and
Iraq described in section 1212 (a)(1)(A)(iv) shall be in
force with respect to the United States unless the
agreement--
(1) is in the form of a treaty requiring the advice and
consent of the Senate (or is intended to take that form in
the case of an agreement under negotiation); or
(2) is specifically authorized by an Act of Congress
enacted after the date of the enactment of this Act.
The Acting CHAIRMAN. Pursuant to House Resolution 1218, the
gentlewoman from California (Ms. Lee) and a Member opposed each will
control 10 minutes.
The Chair recognizes the gentlewoman from California.
Ms. LEE. Mr. Chairman, I yield myself such time as I may consume.
First let me thank Chairman Skelton and Ranking Member Hunter for
their work on this bill and also for their devotion to the men and
women of our Armed Forces.
Thank you very much on behalf of my dad, retired Lieutenant Colonel,
recently deceased, Garvin Tutt. Thank you, Mr. Skelton; thank you, Mr.
Hunter.
Mr. Chairman, my amendment is simple and straightforward. It provides
that no provision contained in any Status of Forces Agreement, or SOFA,
negotiated between the President and the Government of Iraq which
commits the United States to the defense and security of Iraq from
internal and external threats is valid unless this agreement has been
authorized and approved by Congress.
This may sound complicated but it really is not. The issue is really
simple. Should President Bush, this President, or any President be
allowed to obligate our troops to a long-term commitment to spend
resources and provide troops to defend Iraq against its enemies
internal or external without congressional review? The longstanding
answer and constitutional answer to this question is ``no.'' So, Mr.
Chairman, this amendment should not be controversial.
And why is it needed? Because in November, 2007, President Bush and
Iraqi Prime Minister Maliki signed the Declaration of Principles for
Friendship and Cooperation, which included an unprecedented commitment
to defend Iraq against internal and external threats. Frankly, this is
not only unprecedented, but it is really insulting when one considers
that the agreement does require the review and approval of the Iraqi
Parliament but not our own Congress. That doesn't make any sense. If
prior review and approval is good enough for the Iraqi Parliament, it
is good enough for the United States Congress. In fact, it is essential
for the United States Congress to give their approval.
I want to take a moment to address the position of the administration
and some of my Republican colleagues who would argue that the agreement
is nothing more than a garden variety. Status of Forces Agreements, for
the most part, don't require congressional involvement or approval. But
the reality is that this Declaration of Principles goes far beyond what
is typically covered in the Status of Forces Agreement, or SOFA. The
reality is that routine SOFAs do not include any guarantee to defend a
host country against external or internal threats. That just has not
been part of prior SOFA agreements.
I cannot underscore just how serious this commitment is. An agreement
of this kind to commit American troops to the defense of security of
another country is not routine or typical or minor. It is a major
commitment that must have the support of the American people, and that
popular support will only be reflected through the Congress of the
United States, the people's House.
Mr. Chairman, if a decision is made about keeping troops in Iraq
indefinitely, then it is the Congress that
[[Page H4775]]
should have a say. My amendment does that.
I want to be clear, though, that this amendment is not about
redeploying our troops from Iraq, a position that I strongly support,
nor is it about timelines or reconstruction or oil or the various other
debates raging around our occupation of Iraq. We can't undo the
suffering, the death, the horrible injuries, the deep psychological
scars, or the millions of lives that are forever altered, and we can't
erase the misrepresentations made, the mistakes made, or the damage
done. But we can, however, prevent future mistakes. And it would be a
disastrous mistake to let the current declaration move forward without
congressional debate and approval.
So this amendment is about the future. Do we want the next President
and Congress to inherit a situation where our troops are committed to
fight Iraqi civil wars and any entity the Iraqis deem a threat? Do we
really want that? Do we want to do that without even having debated it
or allowing congressional review? Do we really want that?
This is about standing up for Congress and the Constitution. Again,
this amendment is responsible, practical, and necessary. For these
reasons, I urge all Members to support my amendment.
Mr. Chairman, I reserve the balance of my time.
Mr. HUNTER. Mr. Chairman, I rise in opposition to the amendment.
The Acting CHAIRMAN. The gentleman from California is recognized for
10 minutes.
Mr. HUNTER. Mr. Chairman, I reluctantly rise to oppose this amendment
because of my great respect for the gentlewoman. But this Status of
Forces Agreement is something that we've done now in over 80-some
countries. And it's not a guarantee of security. It's not a guarantee
of defense. It is not and should not be considered as a treaty. It is
simply for the protection of American soldiers and American civilian
personnel.
It sets out, for example, if you are sued, if you're charged with a
criminal action, there has to be an agreement between the countries as
to how people are treated, that is, how American personnel are treated,
and under the agreement that Iraq has made with the United States.
Now, Secretary Gates has testified to us in the Armed Services
Committee, and he has been asked about the SOFA, and he has said there
are no security guarantees in this SOFA. We're going to have the same
team that has done SOFAs, these Status of Forces Agreements, in many
other countries, moving in to do the same Status of Forces Agreement
that will go over the same types of things. And, again, this does not
rise to the level of a treaty because this is not going to be an
agreement with respect to security guarantees for Iraq. It will contain
no security commitment, and it will not obligate force structure or
troop strength or assure any other security guarantees.
So, Mr. Chairman, this is not a treaty. And I appreciate the
gentlewoman's statements and her intent, and there may be at some point
an agreement between Iraq and the United States that will be a treaty
with respect to security commitments. This doesn't do it. What this
does is protect American personnel. We need it and we need to negotiate
it. We need to get it done. It's not a treaty, and we should not make
it subject to ratification by Congress.
Mr. Chairman, I reserve the balance of my time.
Ms. LEE. Mr. Chairman, I would like to yield 1 minute to the chairman
of the committee, the gentleman from Missouri (Mr. Skelton).
Mr. SKELTON. Mr. Chairman, this is really a reflection of
constitutionality. This refers to any agreement that requires the
United States to take action on behalf of an ally in the face of an
attack. This is one that is an agreement that is a security agreement,
and it requires either a treaty ratified by the United States Senate or
a provision passed by the entire Congress of the United States.
It's unclear, for instance, that if the Iraqis could repel any
external invasion or address a serious internal threat without America
that the United States could avoid being involved against its will in
such a situation. Quite honestly, it is a requirement that the
Constitution be followed. A security agreement, by the way, is
different from a Status of Forces Agreement. I favor the amendment.
Mr. HUNTER. Mr. Chairman, once again, these Status of Forces
Agreements, which are pretty run of the mill, do not manifest security
commitments by the United States to protect the countries that they are
made with. They talk about the treatment and describe the treatment of
Americans with respect to getting licenses, licensing their vehicles,
how they're going to be treated in cases of civil or criminal actions.
Basically how the American who is in that particular foreign country,
and again we have got 80 of them that we have done, how they are going
to be treated by that host country.
Now, they are not security commitments, and if you have something
that does, in fact, commit the United States to a security agreement
with another country, and in this case Iraq, I have no dispute with my
colleagues, that at that point you have a treaty, and a treaty, because
it manifests commitments, has to be ratified.
But I don't understand why we are saying that the Status of Forces
Agreement, which is going to talk about how our troops are treated in
the same way that we talk about how American military personnel who are
in Germany or Japan or 80 other countries are treated, how that now
becomes something special because it's Iraq and, in the case of Iraq
alone, we have to have a ratification by Congress.
{time} 1630
I would reserve the balance of my time.
Ms. LEE. Mr. Chairman, how much time do I have left?
The Acting CHAIRMAN. The gentlewoman has 4\1/2\ minutes remaining.
Ms. LEE. I would yield 1 minute to the gentlelady from Connecticut
(Ms. DeLauro).
Ms. DeLAURO. Mr. Chairman, as we speak, the administration is
negotiating a strategic framework agreement with Iraq that goes well
beyond the typical Status of Forces Agreement. Contrary to what my
colleague, Mr. Hunter says, from California, essentially it does amount
to a treaty. Read the words of the Declaration of Principles. It will
need to be ratified by the Iraqi Parliament and therefore it must be
ratified by the United States Congress as well. This is the issue that
goes to the heart of our constitutional duties as a Congress and the
power to declare war, with which we have been entrusted as
representatives.
After voting against this war, I have supported the goal of
responsibly redeploying our troops for over 2 years, and after
President Bush and Prime Minister al-Maliki signed the Declaration of
Principles last year. It is a document that outlines unprecedented
security commitments and assurances to Iraq from the United States. If
in fact it is just a Status of Forces Agreement as usual, then the
administration should repudiate this Declaration of Principles and
start with a genuine Status of Forces Agreement.
I introduced the Iraq Strategic Agreement Act. I compliment my
colleague, Ms. Lee, and support her amendment.
Mr. HUNTER. Once again, the gentlelady talked about a strategic
framework agreement. That does manifest security commitments, and that
does have to be ratified. But that is not the Status of Forces
Agreement. The Status of Forces Agreement is simply about the treatment
of American military personnel in that particular place. We are talking
about two different things; one that has to be ratified and the other
that doesn't. And I have heard no good argument as to why, of the 80
Status of Forces Agreements that we have around the world, why this one
has to be ratified by Congress and none of the others have to be.
I reserve the balance of my time.
Ms. LEE. I yield 1 minute to the gentleman from Washington (Mr.
McDermott).
(Mr. McDERMOTT asked and was given permission to revise and extend
his remarks.)
Mr. McDERMOTT. I will give you a reason why we ought to have this
amendment. We know what happens when we give this President a blank
check. It always goes badly. We get a
[[Page H4776]]
banner, Mission Accomplished, and he gets to continue a failed war that
has now claimed the U.S. economy as its latest casualty. That is why I
urge my colleagues to approve this Lee amendment.
This lame duck President must not be able to indenture the next
President to carry on a disastrous war of security. This is a lame duck
administration trying to rewrite history, and they will tie the hands
of the Nation into a knot in the process if we let them. The next
President and the next Congress are the only ones who should determine
the future policy in Iraq. This amendment ensures this will happen.
The President has had a blank check since 2001, and we see where we
are. This amendment brings some balance to the process. It's time to
close the blank check account for a lame duck President. We ought to
approve the Lee amendment and preserve our chance in the future to get
out of Iraq.
Ms. LEE. I would like to yield 1 minute to the gentlelady from
California (Ms. Woolsey).
Ms. WOOLSEY. Mr. Chairman, I rise today to support Congresswoman
Barbara Lee's amendment. In fact, Mr. Chairman, if it were not for
abusive power grabs, we would not need this amendment today. As
Chairman Skelton just said to us, this amendment actually strengthens a
right guaranteed to the Congress by the Constitution. With
Congresswoman Lee's amendment, we simply affirm that any major
international agreement signed by the representatives of the United
States, the U.S. Government, it must be approved by the Congress.
Whether you call it a treaty, whether you call it a Declaration of
Principles, this Congress will fulfill our constitutional duty today
because every one of us, every Member of Congress takes an oath to
defend the Constitution of the United States of America, and today we
will do just that.
So, again, I thank Congresswoman Lee, and I urge support of this
amendment.
Mr. HUNTER. How much time do we have left, Mr. Chairman?
The Acting CHAIRMAN. The gentleman from California has 6 minutes
remaining. The gentlewoman from California has 1\1/2\ minutes
remaining.
Mr. HUNTER. Mr. Chairman, I would just say to my colleagues,
including the gentleman from Washington who spoke I think somewhat
disparagingly of the President, this is part of the duties of an
administration anywhere where you have American troops. You lay down
rules of how they are going to be treated with respect to civil
actions, criminal actions, licensing of vehicles, payment of taxes, all
the things that affect a person who is now physically residing in that
foreign country, whether it's an American civilian or a military guy
who's stationed there. It's a necessary thing.
The idea that we are going to elevate this thing, which has been a
fairly ministerial thing, to a treaty on the basis that the people who
are speaking don't like the President doesn't make any sense. You know,
when the Secretary of Defense comes in, testifies to our committee that
there will be no commitments manifest in this particular SOFA with
respect to security, he testifies to us to that effect, the idea that
we say we are not going to believe him, and certain members of the
other side don't like the President so they come down to say anything
he does now has to be ratified by Congress, I think that disparages the
process, Mr. Chairman.
We have got a fairly run-of-the-mill ministerial thing that we need
to do and, once again, I say to my colleagues, this protects American
personnel. The same team that has negotiated this with presumably
dozens of countries and gone over the same ministerial stuff with
respect to how people are treated in that country, will be talking to
the Iraqi leadership and making that same negotiation on those same
points.
So the idea that we now elevate this to a treaty; if a treaty is
coming with this strategic framework, that does have to be ratified by
Congress, and should be ratified by Congress. But let's not mix the two
up. Let's protect our personnel and then let's move to this
ratification or this decision of what any security commitments might
be.
I would reserve the balance of my time.
Ms. LEE. I would like to yield now 1 minute to the gentleman from
Vermont (Mr. Welch).
Mr. WELCH of Vermont. Mr. Chairman, I thank the gentlewoman from
California. We have two issues here. The first is whether this body,
the Congress of the United States, is going to exercise its
responsibility or abnegate its responsibility to the President of the
United States.
We have a bit of a factual dispute about the nature of this
agreement. The chairman of our committee, a distinguished veteran, has
made it clear that this can be in the nature of a treaty. That is what
it applies to. It could implicate us in the second issue, and that is
where the United States should be providing security when essentially
you have a civil war.
The agreements and Status of Force Agreements that Mr. Hunter has
described have been with countries that have stability. This is a
country that has Shia fighting Shia, Shia fighting Sunni, the Kurds
sitting on the side, waiting. The United States should not be providing
security guarantees without the vote of Congress in that circumstance.
Ms. LEE. Mr. Chairman, how much time do I have remaining?
The Acting CHAIRMAN. The gentlewoman has 30 seconds remaining.
Ms. LEE. Mr. Chairman, I'd like to yield the remaining time to close
to the chairman of the Armed Services Committee, the gentleman from
Missouri (Mr. Skelton).
Mr. SKELTON. Mr. Chairman, this is first-year law school discussion.
If you read the amendment offered by the gentlelady, it makes reference
to 1212(a)(1)(a)(4). It applies only to this. I read that section:
``Any security agreement, arrangement, or assurance that obligates the
United States to respond to internal or external threats against
Iraq.'' That doesn't say a thing, not a blooming thing about Status of
Forces Agreement. So that is what we are talking about. That is why a
treaty is required or a consent of Congress.
Mr. HUNTER. Just one other point, and that is in the U.N. Security
Council Resolution, under which our troops operate now, which provides
for how they are treated in Iraq, expires in December. That is why we
need to have a Status of Forces Agreement. If we don't have, and we now
elevate this to a treaty, and Congress doesn't act on the treaty, they
will lose their protection when the United Nations provision expires.
It doesn't make sense to put this onus on them, that somehow we are
going to raise this thing to a treaty level and Congress, by golly, is
going to have to now ratify it before we can decide how an E-5, a
sergeant with a couple of stripes, living in Baghdad, how he is going
to be treated with respect to the laws of that country. It doesn't make
a lot of sense.
I think we ought to leave this thing alone. When we go to any
treaties that actually manifest security commitments by the United
States, certainly that has to be then ratified by Congress. This isn't
one of them. It will be the 81st SOFA that we have had without
requiring Congress to ratify it.
Mr. BERMAN. Mr. Chairman, I rise in strong support of this amendment
by my colleague from the Foreign Affairs Committee.
Mr. Chairman, this is a simple amendment. It provides that any
security commitment, arrangement, or assurance that obligates the
United States to respond to internal or external threats against Iraq
must be approved by an act of Congress or by a treaty that receives
advice and consent.
Mr. Chairman, the United States has many friends around the world,
including in the Middle East, with whom we have non-legally binding
arrangement about security. However, legally binding security
commitments to use the Armed Forces of the United States have only been
entered into with the approval of Congress. U.S. security commitments
to NATO and Japan, for example, have been made pursuant to a treaty
subject to advice and consent with the Senate.
I believe that past precedent should be our guide as to how to deal
with any legally binding obligation of the United States that would
commit both the current President and all of his successors to
defending Iraq. If the President believes this is wise for the country,
he should not do it alone; it should only be taken with congressional
approval.
Mr. Chairman, this is not an esoteric or hypothetical situation. This
past weekend I was in Baghdad with Speaker Pelosi's delegation. It's
quite clear from our discussions there that the government of Iraq at
the highest level expects that any strategic framework or other
[[Page H4777]]
agreement between the United States and Iraq will include a legally
binding security commitment that would require the United States to
respond to threats against Iraq.
This amendment ensures congressional approval and, implicitly,
congressional oversight of any proposed legally binding commitment to
Iraq's security. I would hope that all my colleagues, irrespective of
their political affiliation and their views about the conflict in Iraq,
would agree that Congress should not be sidelined when it comes to what
could be a millennial commitment to defend a country in the heart of
one of the hottest regions on the planet.
I strongly support the amendment.
I yield back the balance of my time.
The Acting CHAIRMAN. The question is on the amendment offered by the
gentlewoman from California (Ms. Lee).
The question was taken; and the Acting Chairman announced that the
ayes appeared to have it.
Mr. HUNTER. Mr. Chairman, I demand a recorded vote.
The Acting CHAIRMAN. Pursuant to clause 6 of rule XVIII, further
proceedings on the amendment offered by the gentlewoman from California
will be postponed.
Amendment No. 50 Offered by Mr. Israel
The Acting CHAIRMAN. It is now in order to consider amendment No. 50
printed in House Report 110-666.
Mr. ISRAEL. Mr. Chairman, I have an amendment at the desk.
The Acting CHAIRMAN. The Clerk will designate the amendment.
The text of the amendment is as follows:
Amendment No. 50 offered by Mr. Israel:
At the end of title XII, add the following new section:
SEC. 12__. EMPLOYMENT FOR RESETTLED IRAQIS.
(a) In General.--Not later than 90 days after the date of
the enactment of this Act, the Secretary of Defense and the
Secretary of State shall jointly establish and operate a
temporary program to offer employment as translators,
interpreters, or cultural awareness instructors to
individuals described in subsection (b).
(b) Eligibility.--Individuals referred to in subsection (a)
are individuals, in the determination of the Secretary of
State, in coordination with the Secretary of Defense and the
Secretary of Homeland Security, who--
(1) are Iraqi nationals lawfully present in the United
States; and
(2) worked, for at least 12 months since 2003, as
translators in the Republic of Iraq for the United States
Armed Forces or other agency of the United States Government.
(c) Funding.--
(1) In general.--Except as provided in paragraph (2), the
program established under subsection (a) shall be funded from
the annual general operating budget of the Department of
Defense.
(2) Exception.--The Secretary of State shall reimburse the
Department of Defense for any costs associated with
individuals described in subsection (b) whose work was for
the Department of State.
(d) Rule of Construction Regarding Access to Classified
Information.--Nothing in this section may be construed as
affecting in any manner practices and procedures regarding
the handling of or access to classified information.
(e) Information Sharing.--The Secretary of Defense and the
Secretary of State shall work with the Secretary of Homeland
Security, the Office of Refugee Resettlement of the
Department of Health and Human Services, and nongovernmental
organizations to ensure that Iraqis resettled in the United
States are informed of the program established under
subsection (a).
(f) Regulations.--The Secretary of Defense, in coordination
with the Secretary of State, shall prescribe such regulations
as are necessary to carry out the program established under
subsection (a), including establishing pay scales and hiring
procedures, and determining the number of positions required
to be filled.
(g) Termination.--
(1) In general.--Except as provided in paragraph (2), the
program established under subsection (a) shall terminate on
December 31, 2014.
(2) Earlier termination.--If the Secretary of Defense, in
coordination with the Secretary of State, determines that the
program established under subsection (a) should terminate
before the date specified in paragraph (1), the Secretaries
may terminate the program if the Secretaries notify Congress
in writing of such termination at least 180 days before such
termination.
The Acting CHAIRMAN. Pursuant to House Resolution 1218, the gentleman
from New York (Mr. Israel) and a Member opposed each will control 5
minutes.
The Chair recognizes the gentleman from New York.
Mr. ISRAEL. Mr. Chairman, this amendment solves a critical deficiency
in our warfighting and our peacekeeping capabilities by strengthening
the Arab language capabilities in the Department of Defense and
Department of State. There are literally hundreds of Iraqis in the
United States who supported our military units as translators in Iraq.
They risked their lives, they risked their families' lives. They went
on patrol in very dangerous areas, told our servicemembers what the
enemy was saying, what was being said.
Then they came here to escape persecution, and when they got here,
they wanted to continue providing those critical linguistic abilities
and they were told there was no place for them to work. Many of them
today are working in Safeways and working in Home Depots and working in
restaurants, instead of providing the linguistic capabilities that we
desperately need in the military theater.
Study after study after study, including the Quadrennial Defense
Review, points to the critical deficiency we have in understanding the
cultures and languages that we are fighting in. Our Nation now has
hundreds of people who grew up in those cultures, speak those
languages, pass background checks, risk their lives, and what do we do,
even though we need their skills? We let them bag groceries at a
Safeway. It doesn't make any sense.
This amendment would help solve that problem by instructing DOD and
the Department of State to create a temporary program that would offer
employment as translators, interpreters, or culture awareness
instructors in Iraq, who meet certain rigid criteria. One, they must be
here legally. Two, they must have worked for at least the last 12
months as translators in Iraq since 2003 for our troops or for another
U.S. Government agency.
This amendment is endorsed by the Episcopal Church, Veterans for
Common Sense, the International Rescue Committee, Church World Service,
which works very hard on it, and many additional groups.
{time} 1645
I would like to read into the Record, Mr. Chairman, a statement by
Major Andrew Morton, U.S. Army Active Service, a former Director of
Strategic Communications for Multinational Forces in Iraq, where he
says, ``Representative's Israel's proposed amendment is a critically
needed program to assist these many Iraqis who have put themselves and
their families in harm's way to assist our joint operations in Iraq.''
This is a very important amendment in helping those who were
protecting us, and I urge its passage.
I reserve the balance of my time.
Mr. HUNTER. Mr. Chairman, I rise in opposition to the amendment.
The Acting CHAIRMAN. The gentleman from California is recognized for
5 minutes.
Mr. HUNTER. Mr. Chairman, first let me express my great respect for
the gentleman who is offering this amendment. He does wonderful work on
the committee and truly has a heart for those who have been impacted by
the operations in Afghanistan and Iraq.
On that point, I would say I remember the time we were in Fallujah
and a young Marine captain came up to us with some language he had
written. In fact, his name was Kevin Coughlin. He thinks he has traded
up. He moved on to the FBI from the committee staff. But we were so
impressed with the language he had written to protect translators that
we brought him back with us and made him part of the HASC staff. He did
leave us a ``Dear John'' note after he left to go to work for the FBI,
but a great young Marine captain. And he felt the same way we had,
which is that our translators needed to be protected.
We have a program which protects them. Now, the question here is, are
we going to mandate employment for them? That is the way I read this
particular legislation. I don't think that is the right way to go.
I think that, first, a lot of these folks have got great initiative.
They are happy to be in a free country. If we have a program to help
make sure they know of all the job opportunities that are available and
perhaps help them with language, make sure that they are connected with
folks that are recruiting our people who need those language talents, I
think that is great.
But I think the idea, at least the way I read this thing, that there
is mandated employment, I think that is
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going a step far. I think it is something we haven't done for other
folks. In this case we have taken people and their families who helped
the United States and we have relocated them in the greatest country in
the world with the freedom to travel all these new roads that they have
never been able to travel before.
But I think, for one thing, that the idea of guaranteed employment,
if they have got a lot of spirit and a lot of initiative, that is the
first way to kill spirit and initiative, is to give a guaranteed
lifetime job to someone. I think we ought to take these folks who have
this great energy, they have obviously displayed a loyalty to the
United States, help them hook up with these thousands and tens of
thousands of employers, including those in the government, but not have
a program that guarantees employment.
So I thank the gentleman for the spirit of his amendment.
I would reserve the balance of my time.
Mr. ISRAEL. I thank the gentleman. I would assure him that this in no
way mandates a program. It asks the Secretary of Defense and the
Secretary of State to create one, but it is totally at their discretion
and provides ultimate flexibility for them.
Mr. Chairman, I yield 1 minute to the distinguished gentleman from
Vermont (Mr. Welch).
Mr. WELCH of Vermont. I thank the gentleman from New York.
The Israel amendment recognizes that we have a responsibility to the
Iraqis who by helping us have put a bull's eye on their back. The
interpreters every single day are in immense jeopardy. They have many
people who, if their identity is determined, will kill them.
But as aggressive as Mr. Israel is in promoting this amendment, he is
really the second-most aggressive advocate. The most aggressive are our
soldiers, who have benefited day in and day out from the services of
people they have come to call their brothers. They want us to stand up
for the people who have stood up for them.
And do they need a job when they come here? Of course they do. This
is about doing work so that they can maintain body and soul. It is also
about them having work that can continue to help our men and women in
uniform.
Mr. HUNTER. Mr. Chairman, I yield 1\1/2\ minutes to the gentleman
from Virginia (Mr. Goode).
Mr. GOODE. Mr. Chairman, I too want to salute the gentleman from New
York and his work on the Armed Forces Committee, but I must
respectfully disagree with this amendment and what I believe is the
philosophy behind it.
We need to be encouraging Iraqis to stay in Iraq. Iraq is improving.
The situation there is expanding. They need to rebuild Iraq. They need
to have a better economy. And by encouraging the best and the brightest
to come to this country, we are doing a disservice. We should not be
encouraging the Iraqi translators to abandon their country, to leave
their country. We should be promoting their staying in Iraq.
If we have jobs programs, I suggest that first, with the mandatory
language that exists in this amendment, that we focus on jobs for U.S.
citizens. Refugees get food stamps, SSI and Medicaid. That is often
more than U.S. citizens get. We should be rolling out the red carpet
for our citizens first, instead of adopting programs like this.
Mr. ISRAEL. Mr. Chairman, I would just point out to my good friend
from Virginia that these translators did risk their lives to help our
troops in Iraq. If they stayed in Iraq, they would in all likelihood be
killed. The reason they come here is to escape assassination.
With that, I yield such time as he may consume to the gentleman from
Missouri (Mr. Skelton), the distinguished chairman of the committee.
Mr. SKELTON. Mr. Chairman, I go back to the basics, and that is, read
the amendment before you. This amendment asks that the Secretaries
jointly establish and operate a temporary program to offer employment
as translators, interpreters, et cetera. This is not a mandate in the
words at all that are before us. Under this amendment, these Iraqis
must have assisted our country in Iraq for at least a year and be here
in the United States legally.
As a practical matter, these are the Iraqis who have been brought to
our country under the legislation offered by my good friend Duncan
Hunter that was included in the National Defense Authorization Act of 2
years ago, which is good language. We are also not talking about a
large number of people. We are talking about 760 people who have been
brought to the United States.
I think we can do something for them. I think a careful reading of
the amendment will solve a lot of discussion today. Mr. Israel is
right.
Mr. HUNTER. Mr. Chairman, I appreciate the remarks of both Mr. Israel
and the ranking member. I am just looking at the language, and it says
``shall offer employment.'' So it clearly says, if I was going to read
that as an agency head, I would say that means I must hire these folks.
Again, this committee worked to make sure that they got over here,
that they were protected and that their families were protected, and I
am glad we did that. I will offer my small offices. We have had jobs
fairs at Bethesda and Walter Reed for our returning wounded warriors
where we bring people from industry and we bring people from the
agencies and we try to get them together with our wounded vets who are
returning and help them to match up and get jobs. I would be happy to
do the same thing with respect to these interpreters. And, indeed,
interpreters have special skills. This should be something that can be
done.
The only thing I would object to is the mandated job. We don't offer
that to our veterans. I just think that is a step a little bit too far.
But I would be happy to work with the gentleman in terms of helping
them to access jobs.
The Acting CHAIRMAN. The question is on the amendment offered by the
gentleman from New York (Mr. Israel).
The amendment was agreed to.
The Acting CHAIRMAN. The Committee will rise informally.
The Speaker pro tempore (Mr. Braley) assumed the chair.
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