[Congressional Record Volume 170, Number 114 (Wednesday, July 10, 2024)]
[Senate]
[Pages S4502-S4503]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 2226. Mr. HAWLEY submitted an amendment intended to be proposed by
him to the bill S. 4638, to authorize appropriations for fiscal year
2025 for military activities of the Department of Defense, for military
construction, and for defense activities of the Department of Energy,
to prescribe military personnel strengths for such fiscal year, and for
other purposes; which was ordered to lie on the table; as follows:
At the end of title VIII, add the following:
Subtitle F--Time to Choose Act of 2024
SEC. 894. SHORT TITLE.
This subtitle may be cited as the ``Time to Choose Act of
2024''.
SEC. 895. FINDINGS.
Congress makes the following findings:
(1) The Department of Defense and other agencies in the
United States Government regularly award contracts to firms
that are simultaneously providing consulting services to
foreign governments and proxies or affiliates thereof.
(2) The provision of such consulting services to covered
foreign entities may support efforts by certain foreign
governments to generate economic and military power that they
can then use to undermine the economic and national security
of the American people.
(3) It is a conflict of interest for consulting firms to
simultaneously aid in the efforts of certain foreign
governments to undermine the economic and national security
of the United States while they are simultaneously
contracting with Federal agencies responsible for protecting
and defending the United States from foreign threats.
(4) Firms should be prevented from engaging in such a
conflict of interest and should instead be required to choose
between aiding the efforts of certain foreign governments or
helping the United States Government to support and defend
its citizens.
SEC. 896. PROHIBITION ON FEDERAL CONTRACTING WITH ENTITIES
THAT ARE SIMULTANEOUSLY AIDING IN THE EFFORTS
OF COVERED FOREIGN ENTITIES.
(a) In General.--In order to end conflicts of interest in
Federal contracting among consulting firms that
simultaneously contract with the United States Government and
covered foreign entities, the Federal Acquisition Regulatory
Council shall, not later than 1 year after the date of the
enactment of this Act, amend the Federal Acquisition
Regulation--
(1) to require any entity that makes an offer or quotation
to provide consulting services to an executive agency,
including services described in the North American Industry
Classification System's Industry Group code 5416, prior to
entering into a Federal contract, to certify that neither it
nor any of its subsidiaries or affiliates hold a consulting
contract with one or more covered foreign entities; and
(2) to prohibit Federal contracts for consulting services
from being awarded to an entity that provides consulting
services, including services described under the North
American Industry Classification System's Industry Group code
5416 if the entity or any of its subsidiaries or affiliates
are determined, based on the self-certification required
under paragraph (1), to be a contractor of, or are otherwise
providing consulting services to, a covered foreign entity.
(b) Waiver.--
(1) In general.--Subject to the limitations in paragraph
(2), the head of an executive agency may waive the conflict
of interest restrictions under this section on a case-by-case
basis if--
(A) the agency head, in consultation with the Secretary of
Defense and the Director of National Intelligence, determines
the waiver to be in the national security interests of the
United States;
(B) the agency head determines that no other entity without
a conflict of interest under this section can perform the
work for the Federal contract;
(C) the head of the executive agency submits to the
Director of the Office of Management and Budget a
notification of such waiver at least 5 days prior to issuing
the waiver;
(D) the head of the executive agency submits to the
appropriate congressional committees a notification of such
waiver within 30 days in unclassified form (accompanied by a
classified annex if necessary) and offers a briefing to those
committees on the information included in the notification;
and
(E) the contracting agency publishes in an easily
accessible location on the agency's public website a list of
the names of the covered foreign entities to which the entity
receiving a waiver provides consulting services, unless the
head of the applicable executive agency, with the approval of
the Director of the Office of Management and Budget, and in
consultation with the Secretary of Defense and Director of
National Intelligence, determines that such public disclosure
would directly harm the national security interests of the
United States.
[[Page S4503]]
(2) Limitations.--
(A) Duration.--A waiver granted under paragraph (1) shall
last for a period of not more than 365 days. The head of the
applicable executive agency, with the approval of the
Director of the Office of Management and Budget, and in
consultation with the Secretary of Defense and Director of
National Intelligence, may extend a waiver granted under such
paragraph one time, for a period up to 180 days after the
date on which the waiver would otherwise expire, if such an
extension is in the national security interests of the United
States and the Director submits to the appropriate
congressional committees a notification of such waiver and
offers a briefing to those committees on the information
included in the notification.
(B) Number.--Not more than one total waiver across all
executive agencies may be granted under paragraph (1) to a
single entity at a given time.
(C) Notification requirements.--The notification required
under subparagraphs (C) and (D) of paragraph (1) shall
include the following information:
(i) Information on the contractor, including--
(I) the name, address, and corporate structure of the
contractor;
(II) the name, address, and corporate structure of any
subsidiaries or subcontractors involved;
(III) all foreign ownership of the contractor;
(IV) all foreign real estate owned by the contractor; and
(V) an employee designated as responsible for managing any
conflict of interests that may arise as part of the contract.
(ii) Information on the covered foreign entities involved
to the extent known by the contractor, including--
(I) the name and address of the covered foreign entity;
(II) the name and address of any subsidiaries or
subcontractors involved;
(III) a complete history of any contracts between the
covered foreign entity and the contractor;
(IV) all ownership of the covered foreign entity; and
(V) any legal authorities providing a foreign government
with access or control over the covered foreign entity.
(iii) Information on the nature of the work performed for
the covered foreign entities, including--
(I) the projected and actual dollar value of the contract;
(II) the projected and actual duration of the contract;
(III) the projected and actual number of employees to work
on the contract;
(IV) the projected and actual number of employees who are
United States citizens who work on the contract;
(V) the projected and actual number of employees who
currently or formerly held security clearances with the
United States Government who work on the contract;
(VI) the subject matter of the contract;
(VII) any materials provided to the covered foreign entity
in order to secure the contract;
(VIII) any tracking number used by the covered foreign
entity to identify the contract;
(IX) any tracking number or information used by the
contractor to identify the contract; and
(X) any military or intelligence applications that could
benefit from the contract.
(iv) Justification of the executive agency's need for
providing the waiver.
(v) An acceptable management oversight plan to ensure that
the work performed for the covered foreign entities does not
compromise the work being performed for the Federal
Government or harm the national security of the United
States, to be approved at not lower than the Deputy Secretary
level at the contracting agency.
(3) Contractor reporting.--The executive agency granting a
waiver under this subsection shall require the contractor, in
the event the contractor identifies any of the following
during the performance of the contract, to report the
following information to the executive agency:
(A) Any human rights violations that are known to the
contractor through information provided to the contractor in
the course of the contract.
(B) Any religious liberty violations that are known to the
contractor through information provided to the contractor in
the course of the contract.
(C) Any risks to United States economic or national
security identified by the contractor in the course of the
contract.
SEC. 897. PENALTIES FOR FALSE INFORMATION.
(a) Termination, Suspension, and Debarment.--If the head of
an executive agency determines that a consulting firm
described in section 896(a)(1) has knowingly submitted a
false certification or information on or after the date on
which the Federal Acquisition Regulatory Council amends the
Federal Acquisition Regulation pursuant to such section, the
head of the executive agency shall terminate the contract
with the consulting firm and consider suspending or debarring
the firm from eligibility for future Federal contracts in
accordance with subpart 9.4 of the Federal Acquisition
Regulation.
(b) False Claims Act.--A consulting firm described in
section 896(a)(1) that, for the purposes of the False Claims
Act, knowingly hides or misrepresents one or more contracts
with covered foreign entities, or otherwise violates the
False Claims Act, shall be subject to the penalties and
corrective actions described in the False Claims Act,
including liability for three times the amount of damages
which the United States Government sustains.
SEC. 898. DEFINITIONS.
In this subtitle:
(1) Appropriate congressional committees.--The term
``appropriate congressional committees'' means the Committee
on Homeland Security and Governmental Affairs of the Senate
and the Committee on Oversight and Accountability of the
House of Representatives.
(2) Consulting services.--The term ``consulting services''
means advisory or assistance services similar to those
defined in Federal Acquisition Regulation 2.101, but for the
purposes of this Act includes services provided to covered
foreign entities, except that the term does not include the
provision of products or services related to--
(A) compliance with legal, audit, accounting, tax,
reporting, or other requirements of the laws and standards of
countries; or
(B) participation in a judicial, legal, or equitable
dispute resolution proceeding.
(3) Covered foreign entity.--The term ``covered foreign
entity'' means any of the following:
(A) The Government of the People's Republic of China, the
Chinese Communist Party, the People's Liberation Army, the
Ministry of State Security, or other security service or
intelligence agency of the People's Republic of China.
(B) The Government of the Russian Federation or any entity
sanctioned by the Secretary of the Treasury under Executive
Order 13662 titled ``Blocking Property of Additional Persons
Contributing to the Situation in Ukraine'' (79 Fed. Reg.
16169).
(C) The government of any country if the Secretary of State
determines that such government has repeatedly provided
support for acts of international terrorism pursuant to any
of the following:
(i) Section 1754(c)(1)(A) of the Export Control Reform Act
of 2018 (50 U.S.C. 4318(c)(1)(A)).
(ii) Section 620A of the Foreign Assistance Act of 1961 (22
U.S.C. 2371).
(iii) Section 40 of the Arms Export Control Act (22 U.S.C.
2780).
(iv) Any other provision of law.
(D) Any entity included on any of the following lists
maintained by the Department of Commerce:
(i) The Entity List set forth in Supplement No. 4 to part
744 of the Export Administration Regulations.
(ii) The Denied Persons List as described in section
764.3(a)(2) of the Export Administration Regulations.
(iii) The Unverified List set forth in Supplement No. 6 to
part 744 of the Export Administration Regulations.
(iv) The Military End User List set forth in Supplement No.
7 to part 744 of the Export Administration Regulations.
(E) Any entity identified by the Secretary of Defense
pursuant to section 1237(b) of the Strom Thurmond National
Defense Authorization Act for Fiscal Year 1999 (Public Law
105-261; 50 U.S.C. 1701 note).
(F) Any entity on the Non-SDN Chinese Military-Industrial
Complex Companies List (NS-CMIC List) maintained by the
Office of Foreign Assets Control of the Department of the
Treasury under Executive Order 14032 (86 Fed. Reg. 30145;
relating to addressing the threat from securities investments
that finance certain companies of the People's Republic of
China), or any successor order.
(4) Executive agency.--The term ``executive agency'' has
the meaning given the term in section 133 of title 41, United
States Code.
(5) False claims act.--The term ``False Claims Act'' means
sections 3729 through 3733 of title 31, United States Code.
(6) North american industry classification system's
industry group code 5416.--The term ``North American Industry
Classification System's Industry Group code 5416'' refers to
the North American Industry Classification System category
that covers Management, Scientific, and Technical Consulting
Services as Industry Group code 5416, including industry
codes 54151, 541611, 541612, 541613, 541614, 541618, 54162,
541620, 54169, and 541690.
SEC. 899. NO ADDITIONAL FUNDING.
No additional funds are authorized to be appropriated for
the purpose of carrying out this subtitle.
______