[Congressional Record (Bound Edition), Volume 157 (2011), Part 4]
[Senate]
[Pages 5439-5441]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           TEXT OF AMENDMENTS

  SA 287. Mr. BROWN of Massachusetts (for himself, Ms. Ayotte, Mrs. 
Hagan, and Mr. Graham) submitted an amendment intended to be proposed 
by him to the bill S. 341, to require the rescission or termination of 
Federal contracts and subcontracts with enemies of the United States; 
which was ordered to lie on the table; as follows:

       Strike all after the enacting clause and insert the 
     following:

     SECTION 1. SHORT TITLE.

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

     SEC. 2. DEFINITIONS.

       In this Act:
       (1) Element of the intelligence community.--The term 
     ``element of the intelligence community'' means an element of 
     the intelligence community specified or designated in section 
     3(4) of the National Security Act of 1947 (50 U.S.C. 
     401a(4)).
       (2) Enemy of the united states.--The term ``enemy of the 
     United States'' means any person or organization determined 
     by the Secretary of Defense or the Secretary of State to be 
     hostile to United States forces or interests or providing 
     support to any person or organization hostile to United 
     States forces or interests during the time of a declared war, 
     peacekeeping operation, or other military or contingency 
     operation.
       (3) Executive agency.--The term ``executive agency'' has 
     the meaning given the term in section 133 of title 41, United 
     States Code.
       (4) Federal acquisition regulation.--The term ``Federal 
     Acquisition Regulation'' means the regulation maintained 
     under section 1303(a)(1) of title 41, United States Code.
       (5) Federal contract.--The term ``Federal contract'' means 
     any contract, including any order under a multiple award or 
     indefinite delivery or indefinite quality contract, entered 
     into by an executive agency for the procurement of property 
     or services (including construction).
       (6) Cooperative agreement.--The term ``cooperative 
     agreement'' has the meaning given the term pursuant to 
     section 6305 of title 31, United States Code.
       (7) Grant.--The term ``grant'' has the meaning given the 
     term pursuant to section 6304 of title 31, United States 
     Code.

     SEC. 3. PROHIBITION ON CONTRACTS, COOPERATIVE AGREEMENTS, OR 
                   GRANTS WITH ENEMIES.

       (a) In General.--Not later than 60 days after the date of 
     the enactment of this Act, the Federal Acquisition Regulatory 
     Council shall amend the Federal Acquisition Regulation and 
     the Secretary of Defense, the Secretary of State, and the 
     Administrator of the United States Agency for International 
     Development shall prescribe regulations or other guidance, as 
     appropriate--
       (1) to provide the authority to restrict the award of 
     Federal contracts, cooperative agreements, or grants to 
     enemies of the United States;
       (2) to void any Federal contract, cooperative agreement, or 
     grant with an enemy of the United States immediately at no 
     cost to the United States Government, including any 
     settlement costs or equitable adjustments to the prime or 
     subcontractor, or any other compensation under other contract 
     provision or provision of law;
       (3) to provide that the head of an executive agency may 
     provide for an adjudication process to balance restricting 
     the award of, or voiding of, a contract, cooperative 
     agreement, or grant, against operational mission needs of the 
     agency;
       (4) to require the contracting official or cooperative 
     agreements or grants official, as the case may be to ensure 
     no further payments, including previously approved payments 
     and compensation, are made to the contractor or grantee; and
       (5) to provide that the head of an executive agency shall 
     have access to prime contractor and subcontractor records to 
     facilitate Federal oversight of the obligation or expenditure 
     of funds under contracts, cooperative agreements, and grants.

[[Page 5440]]

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

     SEC. 4. DETERMINATION OF ENEMY STATUS.

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

     SEC. 5. DUE PROCESS PROCEDURE.

       (a) Contracts.--Any contractor whose contract is voided 
     under the procedures prescribed pursuant to sections 3 and 4 
     may utilize the procedures established under chapter 71 of 
     title 41, United States Code, except that the only basis for 
     a claim under these procedures is that the contractor is not 
     an enemy of the United States as defined under section 2(2).
       (b) Grants and Cooperative Agreements.--The Department of 
     State, the Department of Defense, and the Agency for 
     International Development shall establish internal 
     administrative procedures for reviewing, in the case of a 
     cooperative agreement or grant voided under the procedures 
     prescribed pursuant to sections 3 and 4, the determination 
     that a party to such cooperative agreement or grant is an 
     enemy of the United Stated as defined under section 2(2).
       (c) Protection of National Security.--The regulations 
     established under chapter 71 of title 41, United States Code, 
     as amended pursuant to subsection (a), and the regulations 
     prescribed under subsection (b) shall provide for the 
     protection of national security as appropriate when a claim 
     is submitted pursuant to this section.

     SEC. 6. APPLICABILITY.

       This Act and the amendments made pursuant to this Act shall 
     apply with respect to contracts entered into on or after the 
     date of the enactment of this Act.
                                 ______
                                 
  SA 288. Mr. BROWN of Massachusetts (for himself, Ms. Ayotte, Mrs. 
Hagan, and Mr. Graham) submitted an amendment intended to be proposed 
by him to the bill S. 341, to require the rescission or termination of 
Federal contracts and subcontracts with enemies of the United States; 
which was ordered to lie on the table; as follows:

       Amend the title so as to read: ``A bill to restrict and 
     void Federal contracts and subcontracts, cooperative 
     agreements, and grants with enemies of the United States.''.
                                 ______
                                 
  SA 289. Mr. CARPER (for himself, Mr. Vitter, and Mr. Coburn) 
submitted an amendment intended to be proposed by him to the bill S. 
493, to reauthorize and improve the SBIR and STTR programs, and for 
other purposes; which was ordered to lie on the table; as follows:

       At the end, add the following:

     SEC. ___. SALE OF EXCESS FEDERAL PROPERTY.

       (a) In General.--Chapter 5 of subtitle I of title 40, 
     United States Code, is amended by adding at the end the 
     following:

         ``SUBCHAPTER VII--EXPEDITED DISPOSAL OF REAL PROPERTY

     ``Sec. 621. Definitions

       ``In this subchapter:
       ``(1) Council.--The term `Council' means the Federal Real 
     Property Council established by section 622(a).
       ``(2) Director.--The term `Director' means the Director of 
     the Office of Management and Budget.
       ``(3) Landholding agency.--The term `landholding agency' 
     means a landholding agency (as defined in section 501(i) of 
     the McKinney-Vento Homeless Assistance Act (42 U.S.C. 
     11411(i))).
       ``(4) Real property.--
       ``(A) In general.--The term `real property' means--
       ``(i) a parcel of real property under the administrative 
     jurisdiction of the Federal Government that is--

       ``(I) excess;
       ``(II) surplus;
       ``(III) underperforming; or
       ``(IV) otherwise not meeting the needs of the Federal 
     Government, as determined by the Director; and

       ``(ii) a building or other structure located on real 
     property described in clause (i).
       ``(B) Exclusion.--The term `real property' does not 
     include--
       ``(i) any parcel of real property, and any building or 
     other structure located on real property, that is to be 
     closed or realigned under the Defense Authorization 
     Amendments and Base Closure and Realignment Act (10 U.S.C. 
     2687 note; Public Law 100-526);
       ``(ii) any property that is excluded for reasons of 
     national security by the Director;
       ``(iii) any public lands (as defined in section 203 of the 
     Public Lands Corps Act of 1993 (16 U.S.C. 1722)) administered 
     by--

       ``(I) the Secretary of the Interior, acting through the 
     Director of the Bureau of Land Management, the Director of 
     the National Park Service, or the Commissioner of 
     Reclamation; or
       ``(II) the Secretary of Agriculture, acting through the 
     Chief of the Forest Service; or

       ``(iv) any Indian lands (as defined in section 203 of the 
     Public Lands Corps Act of 1993 (16 U.S.C. 1722)).

     ``Sec. 622. Establishment of a Federal Real Property Council

       ``(a) Establishment.--There is established within the 
     Office of Management and Budget a council to be known as the 
     `Federal Real Property Council'.
       ``(b) Purpose.--The purpose of the Council shall be to 
     develop guidance for the asset management program of each 
     executive agency.
       ``(c) Composition.--
       ``(1) In general.--The Council shall be composed 
     exclusively of--
       ``(A) the senior real property officers of each executive 
     agency;
       ``(B) the Deputy Director for Management of the Office of 
     Management and Budget;
       ``(C) the Controller of the Office of Management and 
     Budget;
       ``(D) the Administrator of General Services; and
       ``(E) any other full-time or permanent part-time Federal 
     officials or employees, as the Chairperson determines to be 
     necessary.
       ``(2) Chairperson.--The Deputy Director for Management of 
     the Office of Management and Budget shall serve as 
     Chairperson of the Council.
       ``(3) Administrative support.--The Office of Management and 
     Budget shall provide funding and administrative support for 
     the Council, as appropriate.
       ``(d) Duties.--The Council shall--
       ``(1) in consultation with the heads of executive agencies, 
     establish performance measures to determine the effectiveness 
     of Federal real property management that are designed--
       ``(A) to enable Congress and heads of executive agencies to 
     track progress in the

[[Page 5441]]

     achievement of property management objectives on a 
     governmentwide basis; and
       ``(B) allow for comparison of the performance of executive 
     agencies against industry and other public sector agencies in 
     terms of performance;
       ``(2) in developing and implementing the performance 
     measures described in paragraph (1), use existing data 
     sources and automated data collection tools;
       ``(3) not later than 180 days after the date of enactment 
     of this subchapter, submit to the Committees on Environment 
     and Public Works and Homeland Security and Governmental 
     Affairs of the Senate and the Committees on Transportation 
     and Infrastructure and Oversight and Government Reform of the 
     House of Representatives a report that contains--
       ``(A) an evaluation of the leasing process in effect as of 
     the date of submission of the report to identify and document 
     inefficiencies in that process;
       ``(B) a suggested strategy to reduce the reliance of 
     executive agencies on leased space for long-term needs if 
     ownership would be less costly; and
       ``(C) an assessment of domestically held, federally leased 
     space, including--
       ``(i) a description of the overall quantity and type of 
     space leased by executive agencies; and
       ``(ii) an identification of current contracts for leased 
     office space in which the leased space is not fully used or 
     occupied (including a plan for subletting of unoccupied 
     space); and
       ``(4)(A) review contracts for leased office space that are 
     in effect as of the date of submission of the report; and
       ``(B) work with executive agencies to renegotiate leases 
     having at lest 2 years remaining in the term of the leases to 
     recognize potential cost savings as quickly as practicable.

     ``Sec. 623. Duties of landholding agencies

       ``(a) In General.--Each landholding agency shall--
       ``(1) maintain adequate inventory controls and 
     accountability systems for property under the control of the 
     agency;
       ``(2) continuously survey property under the control of the 
     agency to identify excess property;
       ``(3) promptly report excess property to the Administrator;
       ``(4) establish goals that lead the agency to reduce excess 
     real property in the inventory of the agency;
       ``(5) reassign property to another activity within the 
     agency if the property is no longer required for purposes of 
     the appropriation used to make the purchase;
       ``(6) transfer excess property under the control of the 
     agency to other Federal agencies and to organizations 
     specified in section 321(c)(2); and
       ``(7) obtain excess properties from other Federal agencies 
     to meet mission needs before acquiring non-Federal property.
       ``(b) Report.--Not later than 90 days after the date of 
     enactment of this subchapter, and annually thereafter, each 
     landholding agency, in consultation with the Council, shall 
     submit to Congress a report that describes, for the year 
     covered by the report--
       ``(1) all surplus real property under the jurisdiction of 
     the landholding agency;
       ``(2) an asset disposal plan, or an update of such a plan, 
     that includes annual goals for the disposal of surplus real 
     property; and
       ``(3) the number of real property disposals completed, 
     including the disposal method used for each individual real 
     property.

     ``Sec. 624. Database

       ``The Administrator shall--
       ``(1) establish and maintain a single, comprehensive, and 
     descriptive database of all real property under the custody 
     and control of all executive branch agencies, except when 
     otherwise required for reasons of national security; and
       ``(2) shall collect from each executive agency such 
     descriptive information (except for classified information) 
     as the Administrator determines will best describe the 
     nature, use, and extent of real property holdings for the 
     Federal Government.

     ``Sec. 625. Disposal program

       ``(a) In General.--
       ``(1) Required disposal.--
       ``(A) In general.--The Director shall, by sale, demolition, 
     or any other means of disposal, dispose of any real 
     properties identified as of the date of enactment of this 
     subchapter that, as determined by the Director, are surplus, 
     are not being used, and will not be used to meet the needs of 
     the Federal Government for the period of fiscal years 2012 
     through 2016.
       ``(B) Conveyance.--Before taking any action to dispose of 
     real property under subparagraph (A), the Director may 
     consider whether the real property can be conveyed to State 
     and local governments, nonprofit organizations, or the 
     homeless for various public purposes or uses as allowed by 
     applicable law.
       ``(2) Website.--
       ``(A) In general.--Except as provided in subparagraph (B), 
     the Director shall ensure that all real properties selected 
     for disposal under this section are listed on a website that 
     shall--
       ``(i) be updated routinely; and
       ``(ii) include the functionality to allow any member of the 
     public, at the option of the member, to receive updates of 
     the list through electronic mail.
       ``(B) National security exemption.--The Director may, for 
     purposes of national security, exclude from listing on the 
     website under subparagraph (A) any real property selected for 
     disposal under this section.
       ``(b) Use of Proceeds.--
       ``(1) In general.--Proceeds received from the disposal of 
     any real property shall be retained and distributed in 
     accordance with paragraphs (2) and (3).
       ``(2) Agencies that may retain proceeds.--With respect to a 
     landholding agency that, as of the date of enactment of this 
     subchapter, has statutory authority to retain full monetary 
     proceeds from the disposal of real property--
       ``(A) nothing in this subsection affects the authority of 
     such a landholding agency to retain those full monetary 
     proceeds; but
       ``(B) the proceeds so retained--
       ``(i) shall be used--

       ``(I) by not later than 1 year after the date of disposal 
     of the real property; and
       ``(II) only for activities relating to Federal real 
     property asset management and disposal; and

       ``(ii) if not used by the date described in clause (i)(I), 
     shall be returned to the general fund of the Treasury for 
     debt reduction purposes.
       ``(3) Agencies that do not retain proceeds.--With respect 
     to a landholding agency that, as of the date of enactment of 
     this subchapter, does not have statutory authority to retain 
     full monetary proceeds from the disposal of real property--
       ``(A) the landholding agency--
       ``(i) may retain not more than 25 percent of the proceeds 
     from the disposal of real property under this subchapter;
       ``(ii) shall use those proceeds--

       ``(I) by not later than 1 year after the date of disposal 
     of the real property; and
       ``(II) only for activities relating to Federal real 
     property asset management and disposal; and

       ``(iii) shall return amounts remaining unexpended after the 
     date described in clause (ii)(I) to the general fund of the 
     Treasury for debt reduction purposes; and
       ``(B) the remainder of those proceeds shall be deposited in 
     the Treasury for debt reduction purposes.
       ``(c) Enforcement.--
       ``(1) In general.--Except as provided in paragraph (2), if 
     the surplus real properties described in subsection (a) are 
     not disposed of as required under this section by September 
     30, 2015, no landholding agency may acquire any real property 
     not under the administrative jurisdiction of the Federal 
     Government, by sale or lease, until the Director submits a 
     certification to Congress of the disposal of all of those 
     surplus real properties.
       ``(2) Waiver.--Paragraph (1) shall not apply to a 
     landholding agency until such date as--
       ``(A) the landholding agency submits to the Director and 
     the Committees on Environment and Public Works and Homeland 
     Security and Governmental Affairs of the Senate and the 
     Committees on Transportation and Infrastructure and Oversight 
     and Government Reform of the House of Representatives a 
     written justification describing the reasons why the surplus 
     real properties described in subsection (a) under the 
     jurisdiction of the landholding agency were not disposed of; 
     and
       ``(B) Congress enacts a law approving the waiver.''.
       (b) Technical and Conforming Amendment.--The table of 
     sections for chapter 5 of subtitle I of title 40, United 
     States Code, is amended by inserting after the item relating 
     to section 611 the following:

          ``subchapter vii--expedited disposal of real property

``Sec.
``621. Definitions.
``622. Establishment of a Federal Real Property Council.
``623. Duties of executive agencies.
``624. Database.
``625. Disposal program.''.
       (c) Report of the Comptroller General.--Not later than 5 
     years after the date of the enactment of this Act, the 
     Comptroller General of the United States shall submit to 
     Congress a report on the use by executive agencies of the 
     authorities provided by this Act and amendments made by this 
     Act.

                          ____________________