[Senate Report 117-219]
[From the U.S. Government Publishing Office]
Calendar No. 575
117th Congress } { Report
SENATE
2d Session } { 117-219
_______________________________________________________________________
COMBATING OBSTRUCTIVE NATIONAL SECURITY UNDERREPORTING OF LEGITIMATE
THREATS (CONSULT) ACT OF 2022
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
S. 4516
TO REQUIRE THE OFFICE OF FEDERAL PROCUREMENT
POLICY TO DEVELOP GOVERNMENTWIDE PROCUREMENT
POLICY AND GUIDANCE TO MITIGATE ORGANIZATIONAL
CONFLICT OF INTERESTS RELATING TO NATIONAL
SECURITY AND FOREIGN POLICY, AND FOR OTHER PURPOSES
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
December 5, 2022.--Ordered to be printed
_________
U.S. GOVERNMENT PUBLISHING OFFICE
39-010 WASHINGTON : 2022
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
GARY C. PETERS, Michigan, Chairman
THOMAS R. CARPER, Delaware ROB PORTMAN, Ohio
MAGGIE HASSAN, New Hampshire RON JOHNSON, Wisconsin
KYRSTEN SINEMA, Arizona RAND PAUL, Kentucky
JACKY ROSEN, Nevada JAMES LANKFORD, Oklahoma
ALEX PADILLA, California MITT ROMNEY, Utah
JON OSSOFF, Georgia RICK SCOTT, Florida
JOSH HAWLEY, Missouri
David M. Weinberg, Staff Director
Zachary I. Schram, Chief Counsel
Michelle M. Benecke, Senior Counsel
Tiffany Ann Shujath, U.S. Department of Homeland Security Detailee
Pamela Thiessen, Minority Staff Director
Sam J. Mulopulos, Minority Deputy Staff Director
Jeremy H. Hayes, Minority Senior Professional Staff Member
Laura W. Kilbride, Chief Clerk
Calendar No. 575
117th Congress } { Report
SENATE
2d Session } { 117-219
======================================================================
COMBATING OBSTRUCTIVE NATIONAL SECURITY UNDERREPORTING OF LEGITIMATE
THREATS (CONSULT) ACT OF 2022
_______
December 5, 2022.--Ordered to be printed
_______
Mr. Peters, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany S. 4516]
[Including cost estimate of the Congressional Budget Office]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (S. 4516) to require
the Office of Federal Procurement Policy to develop
governmentwide procurement policy and guidance to mitigate
organizational conflict of interests relating to national
security and foreign policy, and for other purposes, having
considered the same, reports favorably thereon without
amendment and recommends that the bill do pass.
CONTENTS
Page
I. Purpose and Summary.............................................. 1
II. Background and Need for the Legislation.......................... 2
III. Legislative History.............................................. 2
IV. Section-by-Section Analysis of the Bill, as Reported............. 2
V. Evaluation of Regulatory Impact.................................. 3
VI. Congressional Budget Office Cost Estimate........................ 3
VII. Changes in Existing Law Made by the Bill, as Reported............ 6
I. PURPOSE AND SUMMARY
S. 4516, the Combating Obstructive National Security
Underreporting of Legitimate Threats (CONSULT) Act of 2022,
would require implementation of governmentwide procurement
policy and guidance in the Federal Acquisition Regulation to
help agencies address issues created when federal contractors
have other business relationships with entities that may pose a
national security risk, such as adversarial foreign entities or
governments.
II. BACKGROUND AND NEED FOR THE LEGISLATION
The Combating Obstructive National Security Underreporting
of Legitimate Threats (CONSULT) Act of 2022 directs the Office
of Federal Procurement Policy, in coordination with relevant
department heads such as the Secretary of Defense, Secretary of
State, and Secretary of Commerce, to develop governmentwide
policy and guidance to help agencies address organizational
conflicts of interest (OCI) involving consultant contractor
business relationships with entities that may pose a risk to
national security or foreign policy interests. This policy and
guidance are to be implemented in the Federal Acquisition
Regulation, which currently does not address this specific type
of OCI.\1\
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\1\See FAR Subpart 9.5 for existing policy and guidance on
organizational and consultant conflicts of interest.
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Recent accounts have highlighted geopolitical issues
involving federal procurement, and instances of contractors
supporting the Department of Defense and other agencies on
matters involving national security while also involved in
other business relationships that could compromise, or appear
to compromise, U.S. interests.\2\ Federal agencies need updated
policy and guidance to avoid or mitigate these potential
conflicts.
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\2\Brookings Institution, Russian and China nuclear arsenals:
Posture, proliferation, and the future of arms control (Jun. 21, 2018)
(https://www.brookings.edu/testimonies/russian-and-chinese-nuclear-
arsenals-posture-proliferation-and-the-future-of-arms-control/); NNSA
Cancels $28B Site Management Deal To Split Work Up, Law360 (May 17,
2022) (https://www.law360.com/articles/1494245/nnsa-cancels-28b-site-
management-deal-to-split-work-up). See also Advising both Chinese state
companies and the Pentagon, McKinsey & Co. comes under scrutiny, NBC
News (Nov. 13, 2021) (www.nbcnews.com/politics/national-security/
advising-both-chinese-state-companies-pentagon-mckinsey-co-comes-under-
n1283777); McKinsey & Co. worked with Russian weapons maker even as it
advised Pentagon, NBC News (May 21, 2022) (www.nbcnews.com/politics/
national-security/consulting-firm-mckinsey-co-advised-state-owned-
russian-defense-firm-r-rcna29618).
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III. LEGISLATIVE HISTORY
Senator Joni Ernst (R-IA) introduced S. 4516, the Combating
Obstructive National Security Underreporting of Legitimate
Threats (CONSULT) Act of 2022, on July 13, 2022, with Chairman
Gary Peters (D-MI) and Senator Margaret Hassan (D-NH). Senator
Rick Scott (R-FL) joined as a cosponsor on July 20, 2022, and
Senator Marco Rubio (R FL) joined as a cosponsor on September
7, 2022.
The bill was referred to the Committee on Homeland Security
and Governmental Affairs.
The Committee considered S. 4516 at a business meeting on
August 3, 2022. The bill was ordered reported favorably by
voice vote with Senators Peters, Hassan, Sinema, Rosen,
Padilla, Ossoff, Romney, Scott, and Hawley present.
IV. SECTION-BY-SECTION ANALYSIS OF THE BILL, AS REPORTED
Section 1. Short title
This section provides that the Act may be cited as the
``Combating Obstructive National Security Underreporting of
Legitimate Threats (CONSULT) Act of 2022.''
Sec. 2. Findings
This section identifies congressional findings related to
the Act, including findings related to the federal government's
reliance on contractors for mission support services creating
the potential for conflicts of interest involving matters of
national security, the importance of ensuring contractor
support does not run counter to the national security and
foreign policy interests of the United States, and the need to
protect against this type of conflict as essential to the
national security and economic security of the United States.
Sec. 3. Governmentwide procurement policy and guidance to mitigate
organizational conflicts of interest relating to national
security and foreign policy
This section requires the Office of Federal Procurement
Policy, in consultation with relevant agencies, to develop
governmentwide procurement policy and guidance to address
organizational conflicts of interest relating to contracts
involving national security matters or foreign policy interests
of the United States. This policy and guidance must include a
definition of consulting contract; provisions and clauses for
agencies to use that require consulting contractors to disclose
potential organizational conflicts of interest involving
certain entities; provide that organizational conflicts of
interest found to be contrary to the national security or
foreign policy interests of the United States may be grounds
for denial of a contract; and, make clear that failure to
disclose such a potential conflict may be grounds for
termination for cause, suspension, or debarment of a
contractor. This policy and guidance must be implemented in the
Federal Acquisition Regulation within 1 year of enactment.
V. EVALUATION OF REGULATORY IMPACT
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this bill and determined
that the bill will have no regulatory impact within the meaning
of the rules. The Committee agrees with the Congressional
Budget Office's (CBO) statement that the bill contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act (UMRA) and would impose no costs
on state, local, or tribal governments.
VI. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE
U.S. Congress,
Congressional Budget Office,
Washington, DC, November 9, 2022.
Hon. Gary C. Peters,
Chairman, Committee on Homeland Security and Governmental Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed table summarizing estimated budgetary
effects and mandates information for some of the legislation
that has been ordered reported by the Senate Committee on
Homeland Security an Governmental Affairs during the 117th
Congress.
If you wish further details, we will be pleased to provide
them. The CBO staff contact for each estimate is listed on the
enclosed table.
Sincerely,
Phillip L. Swagel,
Director.
Enclosure.
SUMMARY ESTIMATES OF LEGISLATION ORDERED REPORTED
The Congressional Budget Act of 1974 requires the
Congressional Budget Office, to the extent practicable, to
prepare estimates of the budgetary effects of legislation
ordered reported by Congressional authorizing committees. In
order to provide the Congress with as much information as
possible, the attached table summarizes information about the
estimated direct spending and revenue effects of some of the
legislation that has been ordered reported by the Senate
Committee on Homeland Security and Governmental Affairs during
the 117th Congress. The legislation listed in this table
generally would have small effects, if any, on direct spending
or revenues, CBO estimates. Where possible, the table also
provides information about the legislation's estimated effects
on spending subject to appropriation and on intergovernmental
and private-sector mandates as defined in the Unfunded Mandates
Reform Act.
ESTIMATED BUDGETARY EFFECTS AND MANDATES INFORMATION
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Increases
Direct Spending Subject Pay-As-You- On-Budget
Bill Title Status Last Budget Spending, Revenues, to Go Deficits Mandates Contact
Number Action Function 2023-2032 2023-2032 Appropriation, Procedures Beginning
2023-2027 Apply? in 2033?
--------------------------------------------------------------------------------------------------------------------------------------------------------
S. 4516 Combating Ordered 08/03/22 800 Between Between Not estimated Yes No No Matthew
Obstructive reported zero and zero and Pickford
National $500,000 $500,000
Security
Underreporti
ng of
Legitimate
Threats
(CONSULT)
Act of 2022
--------------------------------------------------------------------------------------------------------------------------------------------------------
S. 4516 would require the Office of Federal Procurement Policy to develop policy and guidance to mitigate conflicts of interest in federal contracts
involving national security or foreign policy interests. Contracts with the Chinese and Russian governments or affiliated entities as well as state
sponsors of terrorism, among others, would be subject to the new policies. CBO estimates that enacting S. 4516 would have an insignificant effect on
direct spending and revenues over the 2023-2032 period. CBO has not estimated the discretionary costs of implementing the bill. The bill contains no
intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act.
VII. CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
This legislation would make no changes in existing law,
within the meaning of clauses (a) and (b) of subparagraph 12 of
rule XXVI of the Standing Rules of the Senate, because this
legislation would not repeal or amend any provision of current
law.
[all]