To improve Federal contracting and procurement by eliminating fraud and abuse and improving competition in contracting and procurement and by enhancing administration of Federal contracting personnel.

SA 4805. Mr. DORGAN submitted an amendment intended to be proposed by
him to the bill H.R. 5631, making appropriations for the Department of
Defense for the fiscal year ending September 30, 2007, and for other
purposes; as follows:

On page 238, after line 24, add the following:

TITLE X--ELIMINATION OF FRAUD IN GOVERNMENT CONTRACTING

SEC. 10001. SHORT TITLE.

This title may be cited as the ``Honest Leadership and
Accountability in Contracting Act of 2006''.

Subtitle A--Elimination of Fraud and Abuse

SEC. 10011. PROHIBITION OF WAR PROFITEERING AND FRAUD.

(a) Prohibition.--
(1) In general.--Chapter 47 of title 18, United States
Code, is amended by adding at the end the following:

``Sec. 1039. War profiteering and fraud

``(a) Prohibition.--
``(1) In general.--Whoever, in any matter involving a
contract or the provision of goods or services, directly or
indirectly, in connection with a war or military action
knowingly and willfully--
``(A) executes or attempts to execute a scheme or artifice
to defraud the United States or the entity having
jurisdiction over the area in which such activities occur;
``(B) falsifies, conceals, or covers up by any trick,
scheme, or device a material fact;
``(C) makes any materially false, fictitious, or fraudulent
statements or representations, or makes or uses any
materially false writing or document knowing the same to
contain any materially false, fictitious, or fraudulent
statement or entry; or
``(D) materially overvalues any good or service with the
specific intent to excessively profit from the war or
military action;
shall be fined under paragraph (2), imprisoned not more than
20 years, or both.
``(2) Fine.--A person convicted of an offense under
paragraph (1) may be fined the greater of--
``(A) $1,000,000; or
``(B) if such person derives profits or other proceeds from
the offense, not more than twice the gross profits or other
proceeds.
``(b) Extraterritorial Jurisdiction.--There is
extraterritorial Federal jurisdiction over an offense under
this section.
``(c) Venue.--A prosecution for an offense under this
section may be brought--
``(1) as authorized by chapter 211 of this title;
``(2) in any district where any act in furtherance of the
offense took place; or
``(3) in any district where any party to the contract or
provider of goods or services is located.''.
(2) Clerical amendment.--The table of sections for chapter
47 of title 18, United States Code, is amended by adding at
the end the following:

``1039. War profiteering and fraud.''.

(b) Civil Forfeiture.--Section 981(a)(1)(C) of title 18,
United States Code, is amended by inserting ``1039,'' after
``1032,''.
(c) Criminal Forfeiture.--Section 982(a)(2)(B) of title 18,
United States Code, is amended by striking ``or 1030'' and
inserting ``1030, or 1039''.
(d) Treatment Under Money Laundering Offense.--Section
1956(c)(7)(D) of title 18, United States Code, is amended by
inserting the following: ``, section 1039 (relating to war
profiteering and fraud)'' after ``liquidating agent of
financial institution),''.

SEC. 10012. SUSPENSION AND DEBARMENT OF UNETHICAL
CONTRACTORS.

(a) In General.--Not later than 90 days after the date of
the enactment of this Act, the Federal Acquisition Regulation
issued pursuant to section 25 of the Office of Federal
Procurement Policy Act (41 U.S.C. 421) shall be revised to
provide that no prospective contractor shall be considered to
have a satisfactory record of integrity and business ethics
if it--
(1) has exhibited a pattern of overcharging the Government
under Federal contracts; or
(2) has exhibited a pattern of failing to comply with the
law, including tax, labor and employment, environmental,
antitrust, and consumer protection laws.
(b) Effective Date.--The revised regulation required by
this section shall apply with respect to all contracts for
which solicitations are issued after the date that is 90 days
after the date of the enactment of this Act.

SEC. 10013. DISCLOSURE OF AUDIT REPORTS.

(a) Disclosure of Information to Congress.--
(1) In general.--The head of each executive agency shall
maintain a list of audit reports issued by the agency during
the current and previous calendar years that--
(A) describe significant contractor costs that have been
identified as unjustified, unsupported, questioned, or
unreasonable under any contract, task or delivery order, or
subcontract; or
(B) identify significant or substantial deficiencies in any
business system of any contractor under any contract, task or
delivery order, or subcontract.
(2) Submission of individual audits.--The head of each
executive agency shall provide, within 14 days of a request
in writing by the chairman or ranking member of a committee
of jurisdiction, a full and unredacted copy of--
(A) the current version of the list maintained pursuant to
paragraph (1); or
(B) any audit or other report identified on such list.
(b) Publication of Information on Federal Contractor
Penalties and Violations.--
(1) In general.--Not later than 180 days after the date of
the enactment of this Act, the Federal Procurement Data
System shall be modified to include--

[[Page S8655]]

(A) information on instances in which any major contractor
has been fined, paid penalties or restitution, settled, plead
guilty to, or had judgments entered against it in connection
with allegations of improper conduct; and
(B) information on all sole source contract awards in
excess of $2,000,000 entered into by an executive agency.
(2) Publicly available website.--The information required
by paragraph (1) shall be made available through the publicly
available website of the Federal Procurement Data System.

Subtitle B--Contract Matters

Part 1--Competition in Contracting

SEC. 10021. PROHIBITION ON AWARD OF MONOPOLY CONTRACTS.

(a) Civilian Agency Contracts.--Section 303H(d) of the
Federal Property and Administrative Services Act of 1949 (41
U.S.C. 253h(d)) is amended by adding at the end the following
new paragraph:
``(4)(A) No task or delivery order contract in an amount
estimated to exceed $100,000,000 (including all options) may
be awarded to a single contractor unless the head of the
agency determines in writing that--
``(i) because of the size, scope, or method of performance
of the requirement, it would not be practical to award
multiple task or delivery order contracts;
``(ii) the task orders expected under the contract are so
integrally related that only a single contractor can
reasonably perform the work; or
``(iii) for any other reason, it is necessary in the public
interest to award the contract to a single contractor.
``(B) The head of the agency shall notify Congress within
30 days of any determination under subparagraph (A)(iii).''.
(b) Defense Contracts.--Section 2304a(d) of title 10,
United States Code, is amended by adding at the end the
following new paragraph:
``(4)(A) No task or delivery order contract in an amount
estimated to exceed $100,000,000 (including all options) may
be awarded to a single contractor unless the head of the
agency determines in writing that--
``(i) because of the size, scope, or method of performance
of the requirement, it would not be practical to award
multiple task or delivery order contracts;
``(ii) the task orders expected under the contract are so
integrally related that only a single contractor can
reasonably perform the work; or
``(iii) for any other reason, it is necessary in the public
interest to award the contract to a single contractor.
``(B) The head of the agency shall notify Congress within
30 days of any determination under subparagraph (A)(iii).''.

SEC. 10022. COMPETITION IN MULTIPLE AWARD CONTRACTS.

(a) Regulations Required.--Not later than 180 days after
the date of the enactment of this Act, the Federal
Acquisition Regulation shall be revised to require
competition in the purchase of goods and services by each
executive agency pursuant to multiple award contracts.
(b) Content of Regulations.--(1) The regulations required
by subsection (a) shall provide, at a minimum, that each
individual purchase of goods or services in excess of
$1,000,000 that is made under a multiple award contract shall
be made on a competitive basis unless a contracting officer
of the executive agency--
(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 Services Act of 1949 (41 U.S.C. 253j(b))
applies to such individual purchase; or
(ii) a statute expressly authorizes or requires that the
purchase be made from a specified source; and
(B) justifies the determination in writing.
(2) For purposes of this subsection, an individual purchase
of goods or services is made on a competitive basis only if
it is made pursuant to procedures that--
(A) 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 goods 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) Notwithstanding paragraph (2), notice may be provided
to fewer than all contractors offering such goods or services
under a multiple award contract described in subsection
(c)(2)(A) if notice is provided to as many contractors as
practicable.
(4) A purchase may not be made pursuant to a notice that is
provided to fewer than all contractors under paragraph (3)
unless--
(A) offers were received from at least three qualified
contractors; or
(B) 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) 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 309(b)(3) of the Federal Property and
Administrative Services Act of 1949 (41 U.S.C. 259(b)(3));
(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 two or more sources pursuant to the same
solicitation.
(d) Applicability.--The revisions to the Federal
Acquisition Regulation pursuant to subsection (a) shall take
effect not later than 180 days after the date of the
enactment of this Act, and shall apply to all individual
purchases of goods or services that are made under multiple
award contracts on or after the effective date, without
regard to whether the multiple award contracts were entered
into before, on, or after such effective date.
(e) Conforming Amendments to Defense Contract Provision.--
Section 803 of the National Defense Authorization Act for
Fiscal Year 2002 (Public Law 107-107; 10 U.S.C. 2304 note) is
amended as follows:
(1) Goods covered.--(A) The section heading is amended by
inserting ``GOODS OR'' before ``SERVICES''.
(B) Subsection (a) is amended by inserting ``goods and''
before ``services''.
(C) The following provisions are amended by inserting
``goods or'' before ``services'' each place it appears:
(i) Paragraphs (1), (2), and (3) of subsection (b).
(ii) Subsection (d).
(D) Such section is amended by adding at the end the
following new subsection:
``(e) Applicability to Goods.--The Secretary shall revise
the regulations promulgated pursuant to subsection (a) to
cover purchases of goods by the Department of Defense
pursuant to multiple award contracts. The revised regulations
shall take effect in final form not later than 180 days after
the date of the enactment of this subsection and shall apply
to all individual purchases of goods that are made under
multiple award contracts on or after the effective date,
without regard to whether the multiple award contracts were
entered into before, on, or after such effective date.''.
(f) Protest Rights for Certain Awards.--
(1) Civilian agency contracts.--Section 303J(d) of the
Federal Property and Administrative Services Act (41 U.S.C.
253j(d)) is amended by inserting ``with a value of less than
$500,000'' after ``task or delivery order''.
(2) Defense contracts.--Section 2304c(d) of title 10,
United States Code, is amended by inserting ``with a value of
less than $500,000'' after ``task or delivery order''.

Part 2--Contract Personnel Matters

SEC. 10031. CONTRACTOR CONFLICTS OF INTEREST.

(a) Prohibition on Contracts Relating to Inherently
Governmental Functions.--The head of an agency may not enter
into a contract for the performance of any inherently
governmental function.
(b) Prohibition on Contracts for Contract Oversight.--
(1) Prohibition.--The head of an agency may not enter into
a contract for the performance of acquisition functions
closely associated with inherently governmental functions
with any entity unless the head of the agency determines in
writing that--
(A) neither that entity nor any related entity will be
responsible for performing any of the work under a contract
which the entity will help plan, evaluate, select a source,
manage or oversee; and
(B) the agency has taken appropriate steps to prevent or
mitigate any organizational conflict of interest that may
arise because the entity--
(i) has a separate ongoing business relationship, such as a
joint venture or contract, with any of the contractors to be
overseen;
(ii) would be placed in a position to affect the value or
performance of work it or any related entity is doing under
any other Government contract;
(iii) has a reverse role with the contractor to be overseen
under one or more separate Government contracts; or
(iv) has some other relationship with the contractor to be
overseen that could reasonably appear to bias the
contractor's judgment.
(2) Related entity defined.--In this subsection, the term
``related entity'', with respect to a contractor, means any
subsidiary, parent, affiliate, joint venture, or other entity
related to the contractor.
(c) Definitions.--In this section:
(1) The term ``inherently governmental functions'' has the
meaning given to such term in part 7.5 of the Federal
Acquisition Regulation.
(2) The term ``functions closely associated with
governmental functions'' means the functions described in
section 7.503(d) of the Federal Acquisition Regulation.
(3) The term ``organizational conflict of interest'' has
the meaning given such term in part 9.5 of the Federal
Acquisition Regulation.
(d) Effective Date and Applicability.--This section shall
take effect on the date of the enactment of this Act and
shall apply to--
(1) contracts entered into on or after such date;

[[Page S8656]]

(2) any task or delivery order issued on or after such date
under a contract entered into before, on, or after such date;
and
(3) any decision on or after such date to exercise an
option or otherwise extend a contract for the performance of
a function relating to contract oversight regardless of
whether such contract was entered into before, on, or after
such date.

SEC. 10032. ELIMINATION OF REVOLVING DOOR BETWEEN FEDERAL
PERSONNEL AND CONTRACTORS.

(a) Elimination of Loopholes Allowing Former Federal
Officials To Accept Compensation From Contractors or Related
Entities.--
(1) In general.--Paragraph (1) of subsection (d) of section
27 of the Office of Federal Procurement Policy Act (41 U.S.C.
423) is amended--
(A) by striking ``or consultant'' and inserting
``consultant, lawyer, or lobbyist'';
(B) by striking ``one year'' and inserting ``two years'';
and
(C) in subparagraph (C), by striking ``personally made for
the Federal agency--'' and inserting ``participated
personally and substantially in--''.
(2) Definition.--Paragraph (2) of such subsection is
amended to read as follows:
``(2) For purposes of paragraph (1), the term `contractor'
includes any division, affiliate, subsidiary, parent, joint
venture, or other related entity of a contractor.''.
(b) Prohibition on Award of Government Contracts to Former
Employers.--Such section is further amended by adding at the
end the following new subsection:
``(i) Prohibition on Involvement by Certain Former
Contractor Employees in Procurements.--A former employee of a
contractor who becomes an employee of the Federal Government
shall not be personally and substantially involved with any
Federal agency procurement involving the employee's former
employer, including any division, affiliate, subsidiary,
parent, joint venture, or other related entity of the former
employer, for a period of two years beginning on the date on
which the employee leaves the employment of the contractor
unless the designated agency ethics officer for the agency
determines in writing that the government's interest in the
former employee's participation in a particular procurement
outweighs any appearance of impropriety.''.
(c) Requirement for Federal Procurement Officers To
Disclose Job Offers Made to Relatives.--Subsection (c)(1) of
such section is amended by inserting after ``that official''
the following: ``, or for a relative of that official (as
defined in section 3110 of title 5, United States Code),''.
(d) Additional Criminal Penalties.--Paragraph (1) of
subsection (e) of such section is amended to read as follows:
``(1) Criminal penalties.--Whoever engages in conduct
constituting a violation of--
``(A) subsection (a) or (b) for the purpose of either--
``(i) exchanging the information covered by such subsection
for anything of value, or
``(ii) obtaining or giving anyone a competitive advantage
in the award of a Federal agency procurement contract; or
``(B) subsection (c) or (d);
shall be imprisoned for not more than 5 years, fined as
provided under title 18, Untied States Code, or both.''.
(e) Regulations.--Such section is further amended by adding
at the end the following new subsection:
``(j) Regulations.--The Director of the Office of
Government Ethics, in consultation with the Administrator,
shall--
``(1) promulgate regulations to carry out and ensure the
enforcement of this section; and
``(2) monitor and investigate individual and agency
compliance with this section.''.

Subtitle C--Other Personnel Matters

SEC. 10041. MINIMUM REQUIREMENTS FOR POLITICAL APPOINTEES
HOLDING PUBLIC CONTRACTING AND SAFETY
POSITIONS.

(a) In General.--A position specified in subsection (b) may
not be held by any political appointee who does not meet the
requirements of subsection (c).
(b) Specified Positions.--A position specified in this
subsection is any position as follows:
(1) A public contracting position.
(2) A public safety position.
(c) Minimum Requirements.--An individual shall not, with
respect to any position, be considered to meet the
requirements of this subsection unless such individual--
(1) has academic, management, and leadership credentials in
one or more areas relevant to such position;
(2) has a superior record of achievement in one or more
areas relevant to such position;
(3) has training and expertise in one or more areas
relevant to such position; and
(4) has not, within the 2-year period ending on the date of
such individual's nomination for or appointment to such
position, been a lobbyist for any entity or other client that
is subject to the authority of the agency within which, if
appointed, such individual would serve.
(d) Political Appointee.--For purposes of this section, the
term ``political appointee'' means any individual who--
(1) is employed in a position listed in sections 5312
through 5316 of title 5, United States Code (relating to the
Executive Schedule);
(2) is a limited term appointee, limited emergency
appointee, or noncareer appointee in the Senior Executive
Service; or
(3) is employed in the executive branch of the Government
in a position which has been excepted from the competitive
service by reason of its policy-determining, policy-making,
or policy-advocating character.
(e) Public Contracting Position.--For purposes of this
section, the term ``public contracting position'' means the
following:
(1) The Administrator for Federal Procurement Policy.
(2) The Administrator of the General Services
Administration.
(3) The Chief Acquisition Officer of any executive agency,
as appointed or designated pursuant to section 16 of the
Office of Federal Procurement Policy Act (41 U.S.C. 414).
(4) The Under Secretary of Defense for Acquisition,
Technology, and Logistics.
(5) Any position (not otherwise identified under any of the
preceding provisions of this subsection) a primary function
of which involves government procurement and procurement
policy, as identified by the head of each employing agency in
consultation with the Office of Personnel Management.
(f) Public Safety Position.--For purposes of this section,
the term ``public safety position'' means the following:
(1) The Under Secretary for Emergency Preparedness and
Response, Department of Homeland Security.
(2) The Director of the Federal Emergency Management
Agency, Department of Homeland Security.
(3) Each regional director of the Federal Emergency
Management Agency, Department of Homeland Security.
(4) The Recovery Division Director of the Federal Emergency
Management Agency, Department of Homeland Security.
(5) The Assistant Secretary for Immigration and Customs
Enforcement, Department of Homeland Security.
(6) The Assistant Secretary for Public Health Emergency
Preparedness, Department of Health and Human Services.
(7) The Assistant Administrator for Solid Waste and
Emergency Response, Environmental Protection Agency.
(8) Any position (not otherwise identified under any of the
preceding provisions of this subsection) a primary function
of which involves responding to a direct threat to life or
property or a hazard to health, as identified by the head of
each employing agency in consultation with the Office of
Personnel Management.
(g) Publication of Positions.--Beginning not later than 30
days after the date of the enactment of this Act, the head of
each agency shall maintain on such agency's public website a
current list of all public contracting positions and public
safety positions within such agency.
(h) Coordination With Other Requirements.--The requirements
set forth in subsection (c) shall be in addition to, and not
in lieu of, any requirements that might otherwise apply with
respect to any particular position.
(i) Definitions.--In this section:
(1) The term ``agency'' means an Executive agency (as
defined by section 105 of title 5, United States Code).
(2) The terms ``limited term appointee'', ``limited
emergency appointee'', and ``noncareer appointee'' have the
meanings given such terms in section 3132 of title 5, United
States Code.
(3) The term ``Senior Executive Service'' has the meaning
given such term by section 2101a of title 5, United States
Code.
(4) The term ``competitive service'' has the meaning given
such term by section 2102 of title 5, United States Code.
(5) The terms ``lobbyist'' and ``client'' have the
respective meanings given them by section 3 of the Lobbying
Disclosure Act of 1995 (2 U.S.C. 1602).
(j) Conforming Amendment.--Section 16(a) of the Office of
Federal Procurement Policy Act (41 U.S.C. 414(a)) is amended
by striking ``non-career employee as''.

SEC. 10042. PROTECTION OF CERTAIN DISCLOSURES OF INFORMATION
BY FEDERAL EMPLOYEES.

(a) Clarification of Disclosures Covered.--Section
2302(b)(8) of title 5, United States Code, is amended--
(1) in subparagraph (A)--
(A) by striking ``which the employee or applicant
reasonably believes evidences'' and inserting ``, without
restriction to time, place, form, motive, context, or prior
disclosure made to any person by an employee or applicant,
including a disclosure made in the ordinary course of an
employee's duties, that the employee or applicant reasonably
believes is evidence of''; and
(B) in clause (i), by striking ``a violation'' and
inserting ``any violation'';
(2) in subparagraph (B)--
(A) by striking ``which the employee or applicant
reasonably believes evidences'' and inserting ``, without
restriction to time, place, form, motive, context, or prior
disclosure made to any person by an employee or applicant,
including a disclosure made in the ordinary course of an
employee's duties, of information that the employee or
applicant reasonably believes is evidence of''; and
(B) in clause (i), by striking ``a violation'' and
inserting ``any violation (other than a violation of this
section)''; and
(3) by adding at the end the following:
``(C) any disclosure that--
``(i) is made by an employee or applicant of information
required by law or Executive

[[Page S8657]]

order to be kept secret in the interest of national defense
or the conduct of foreign affairs that the employee or
applicant reasonably believes is direct and specific evidence
of--

``(I) any violation of any law, rule, or regulation;
``(II) gross mismanagement, a gross waste of funds, an
abuse of authority, or a substantial and specific danger to
public health or safety; or
``(III) a false statement to Congress on an issue of
material fact; and

``(ii) is made to--

``(I) a member of a committee of Congress;
``(II) any other Member of Congress; or
``(III) an employee of Congress who has the appropriate
security clearance and is authorized to receive information
of the type disclosed.''.

(b) Covered Disclosures.--Section 2302(a)(2) of title 5,
United States Code, is amended--
(1) in subparagraph (B)(ii), by striking ``and'' at the
end;
(2) in subparagraph (C)(iii), by striking the period at the
end and inserting ``; and''; and
(3) by adding at the end the following:
``(D) `disclosure' means a formal or informal communication
or transmission, but does not include a communication
concerning policy decisions that lawfully exercise
discretionary authority unless the employee providing the
disclosure reasonably believes that the disclosure
evidences--
``(i) any violation of any law, rule, or regulation; or
``(ii) gross management, a gross waste of funds, an abuse
of authority, or a substantial and specific danger to public
health or safety.''.
(c) Rebuttable Presumption.--Section 2302(b) of title 5,
United States Code, is amended by amending the matter
following paragraph (12) to read as follows:
``This subsection shall not be construed to authorize the
withholding of information from Congress or the taking of any
personnel action against an employee who discloses
information to Congress. For purposes of paragraph (8), any
presumption relating to the performance of a duty by an
employee who has authority to take, direct others to take,
recommend, or approve any personnel action may be rebutted by
substantial evidence. For purposes of paragraph (8), a
determination as to whether an employee or applicant
reasonably believes that they have disclosed information that
evidences any violation of law, rule, regulation, gross
mismanagement, a gross waste of funds, an abuse of authority,
or a substantial and specific danger to public health or
safety shall be made by determining whether a disinterested
observer with knowledge of the essential facts known to and
readily ascertainable by the employee could reasonably
conclude that the actions of the Government evidence such
violations, mismanagement, waste, abuse, or danger.''.
(d) Nondisclosure Policies, Forms, and Agreements; Security
Clearances; and Retaliatory Investigations.--
(1) Personnel action.--Section 2302(a)(2)(A) of title 5,
United States Code, is amended--
(A) in clause (x), by striking ``and'' after the semicolon;
and
(B) by redesignating clause (xi) as clause (xiv) and
inserting after clause (x) the following:
``(xi) the implementation or enforcement of any
nondisclosure policy, form, or agreement;
``(xii) a suspension, revocation, or other determination
relating to a security clearance or any other access
determination by a covered agency;
``(xiii) an investigation, other than any ministerial or
nondiscretionary fact finding activities necessary for the
agency to perform its mission, of an employee or applicant
for employment because of any activity protected under this
section; and''.
(2) Prohibited personnel practice.--Section 2302(b) of
title 5, United States Code, is amended--
(A) in paragraph (11), by striking ``or'' at the end;
(B) in paragraph (12), by striking the period and inserting
a semicolon; and
(C) by inserting after paragraph (12) the following:
``(13) implement or enforce any nondisclosure policy, form,
or agreement, if such policy, form, or agreement does not
contain the following statement: `These provisions are
consistent with and do not supersede, conflict with, or
otherwise alter the employee obligations, rights, or
liabilities created by Executive Order No. 12958; section
7211 (governing disclosures to Congress); section 1034 of
title 10 (governing disclosure to Congress by members of the
military); section 2302(b)(8) (governing disclosures of
illegality, waste, fraud, abuse, or public health or safety
threats); the Intelligence Identities Protection Act of 1982
(50 U.S.C. 421 et seq.) (governing disclosures that could
expose confidential Government agents); and the statutes
which protect against disclosures that could compromise
national security, including sections 641, 793, 794, 798, and
952 of title 18 and section 4(b) of the Subversive Activities
Control Act of 1950 (50 U.S.C. 783(b)). The definitions,
requirements, obligations, rights, sanctions, and liabilities
created by such Executive order and such statutory provisions
are incorporated into this agreement and are controlling'; or
``(14) conduct, or cause to be conducted, an investigation,
other than any ministerial or nondiscretionary fact finding
activities necessary for the agency to perform its mission,
of an employee or applicant for employment because of any
activity protected under this section.''.
(3) Board and court review of actions relating to security
clearances.--
(A) In general.--Chapter 77 of title 5, United States Code,
is amended by inserting after section 7702 the following:

``Sec. 7702a. Actions relating to security clearances

``(a) In any appeal relating to the suspension, revocation,
or other determination relating to a security clearance or
access determination, the Merit Systems Protection Board or
any reviewing court--
``(1) shall determine whether paragraph (8) or (9) of
section 2302(b) was violated;
``(2) may not order the President or the designee of the
President to restore a security clearance or otherwise
reverse a determination of clearance status or reverse an
access determination; and
``(3) subject to paragraph (2), may issue declaratory
relief and any other appropriate relief.
``(b)(1) If, in any final judgment, the Board or court
declares that any suspension, revocation, or other
determination with regards to a security clearance or access
determination was made in violation of paragraph (8) or (9)
of section 2302(b), the affected agency shall conduct a
review of that suspension, revocation, access determination,
or other determination, giving great weight to the Board or
court judgment.
``(2) Not later than 30 days after any Board or court
judgment declaring that a security clearance suspension,
revocation, access determination, or other determination was
made in violation of paragraph (8) or (9) of section 2302(b),
the affected agency shall issue an unclassified report to the
congressional committees of jurisdiction (with a classified
annex if necessary), detailing the circumstances of the
agency's security clearance suspension, revocation, other
determination, or access determination. A report under this
paragraph shall include any proposed agency action with
regards to the security clearance or access determination.
``(c) An allegation that a security clearance or access
determination was revoked or suspended in retaliation for a
protected disclosure shall receive expedited review by the
Office of Special Counsel, the Merit Systems Protection
Board, and any reviewing court.
``(d) For purposes of this section, corrective action may
not be ordered if the agency demonstrates by a preponderance
of the evidence that it would have taken the same personnel
action in the absence of such disclosure.''.
(B) Technical and conforming amendment.--The table of
sections for chapter 77 of title 5, United States Code, is
amended by inserting after the item relating to section 7702
the following:

``7702a. Actions relating to security clearances.''.

(e) Exclusion of Agencies by the President.--Section
2302(a)(2)(C) of title 5, United States Code, is amended by
striking clause (ii) and inserting the following:
``(ii)(I) the Federal Bureau of Investigation, the Office
of the Director of National Intelligence, the Central
Intelligence Agency, the Defense Intelligence Agency, the
National Geospatial-Intelligence Agency, and the National
Security Agency; and
``(II) as determined by the President, any executive agency
or unit thereof the principal function of which is the
conduct of foreign intelligence or counterintelligence
activities, if the determination (as that determination
relates to a personnel action) is made before that personnel
action; or''.
(f) Attorney Fees.--Section 1204(m)(1) of title 5, United
States Code, is amended by striking ``agency involved'' and
inserting ``agency where the prevailing party is employed or
has applied for employment''.
(g) Disciplinary Action.--Section 1215(a)(3) of title 5,
United States Code, is amended to read as follows:
``(3)(A) A final order of the Board may impose--
``(i) disciplinary action consisting of removal, reduction
in grade, debarment from Federal employment for a period not
to exceed 5 years, suspension, or reprimand;
``(ii) an assessment of a civil penalty not to exceed
$1,000; or
``(iii) any combination of disciplinary actions described
under clause (i) and an assessment described under clause
(ii).
``(B) In any case in which the Board finds that an employee
has committed a prohibited personnel practice under paragraph
(8) or (9) of section 2302(b), the Board shall impose
disciplinary action if the Board finds that the activity
protected under paragraph (8) or (9) of section 2302(b) was a
significant motivating factor, even if other factors also
motivated the decision, for the employee's decision to take,
fail to take, or threaten to take or fail to take a personnel
action, unless that employee demonstrates, by preponderance
of evidence, that the employee would have taken, failed to
take, or threatened to take or fail to take the same
personnel action, in the absence of such protected
activity.''.
(h) Special Counsel Amicus Curiae Appearance.--Section 1212
of title 5, United States Code, is amended by adding at the
end the following:
``(h)(1) The Special Counsel is authorized to appear as
amicus curiae in any action

[[Page S8658]]

brought in a court of the United States related to any civil
action brought in connection with section 2302(b) (8) or (9),
or subchapter III of chapter 73, or as otherwise authorized
by law. In any such action, the Special Counsel is authorized
to present the views of the Special Counsel with respect to
compliance with section 2302(b) (8) or (9) or subchapter III
of chapter 73 and the impact court decisions would have on
the enforcement of such provisions of law.
``(2) A court of the United States shall grant the
application of the Special Counsel to appear in any such
action for the purposes described in subsection (a).''.
(i) Judicial Review.--
(1) In general.--Section 7703(b)(1) of title 5, United
States Code, is amended to read as follows:
``(b)(1)(A) Except as provided in subparagraph (B) and
paragraph (2), a petition to review a final order or final
decision of the Board shall be filed in the United States
Court of Appeals for the Federal Circuit. Notwithstanding any
other provision of law, any petition for review must be filed
within 60 days after the date the petitioner received notice
of the final order or decision of the Board.
``(B) During the 5-year period beginning on the effective
date of this subsection, a petition to review a final order
or final decision of the Board in a case alleging a violation
of paragraph (8) or (9) of section 2302(b) shall be filed in
the United States Court of Appeals for the Federal Circuit or
any court of appeals of competent jurisdiction as provided
under subsection (b)(2).''.
(2) Review obtained by office of personnel management.--
Section 7703(d) of title 5, United States Code, is amended to
read as follows:
``(d)(1) Except as provided under paragraph (2), this
paragraph shall apply to any review obtained by the Director
of the Office of Personnel Management. The Director of the
Office of Personnel Management may obtain review of any final
order or decision of the Board by filing, within 60 days
after the date the Director received notice of the final
order or decision of the Board, a petition for judicial
review in the United States Court of Appeals for the Federal
Circuit if the Director determines, in his discretion, that
the Board erred in interpreting a civil service law, rule, or
regulation affecting personnel management and that the
Board's decision will have a substantial impact on a civil
service law, rule, regulation, or policy directive. If the
Director did not intervene in a matter before the Board, the
Director may not petition for review of a Board decision
under this section unless the Director first petitions the
Board for a reconsideration of its decision, and such
petition is denied. In addition to the named respondent, the
Board and all other parties to the proceedings before the
Board shall have the right to appear in the proceeding before
the Court of Appeals. The granting of the petition for
judicial review shall be at the discretion of the Court of
Appeals.
``(2) During the 5-year period beginning on the effective
date of this subsection, this paragraph shall apply to any
review relating to paragraph (8) or (9) of section 2302(b)
obtained by the Director of the Office of Personnel
Management. The Director of the Office of Personnel
Management may obtain review of any final order or decision
of the Board by filing, within 60 days after the date the
Director received notice of the final order or decision of
the Board, a petition for judicial review in the United
States Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction as provided under
subsection (b)(2) if the Director determines, in his
discretion, that the Board erred in interpreting paragraph
(8) or (9) of section 2302(b). If the Director did not
intervene in a matter before the Board, the Director may not
petition for review of a Board decision under this section
unless the Director first petitions the Board for a
reconsideration of its decision, and such petition is denied.
In addition to the named respondent, the Board and all other
parties to the proceedings before the Board shall have the
right to appear in the proceeding before the court of
appeals. The granting of the petition for judicial review
shall be at the discretion of the Court of Appeals.''.
(j) Nondisclosure Policies, Forms, and Agreements.--
(1) In general.--
(A) Requirement.--Each agreement in Standard Forms 312 and
4414 of the Government and any other nondisclosure policy,
form, or agreement of the Government shall contain the
following statement: ``These restrictions are consistent with
and do not supersede, conflict with, or otherwise alter the
employee obligations, rights, or liabilities created by
Executive Order No. 12958; section 7211 of title 5, United
States Code (governing disclosures to Congress); section 1034
of title 10, United States Code (governing disclosure to
Congress by members of the military); section 2302(b)(8) of
title 5, United States Code (governing disclosures of
illegality, waste, fraud, abuse or public health or safety
threats); the Intelligence Identities Protection Act of 1982
(50 U.S.C. 421 et seq.) (governing disclosures that could
expose confidential Government agents); and the statutes
which protect against disclosure that may compromise the
national security, including sections 641, 793, 794, 798, and
952 of title 18, United States Code, and section 4(b) of the
Subversive Activities Act of 1950 (50 U.S.C. 783(b)). The
definitions, requirements, obligations, rights, sanctions,
and liabilities created by such Executive order and such
statutory provisions are incorporated into this agreement and
are controlling.''.
(B) Enforceability.--Any nondisclosure policy, form, or
agreement described under subparagraph (A) that does not
contain the statement required under subparagraph (A) may not
be implemented or enforced to the extent such policy, form,
or agreement is inconsistent with that statement.
(2) Persons other than government employees.--
Notwithstanding paragraph (1), a nondisclosure policy, form,
or agreement that is to be executed by a person connected
with the conduct of an intelligence or intelligence-related
activity, other than an employee or officer of the United
States Government, may contain provisions appropriate to the
particular activity for which such document is to be used.
Such form or agreement shall, at a minimum, require that the
person will not disclose any classified information received
in the course of such activity unless specifically authorized
to do so by the United States Government. Such nondisclosure
forms shall also make it clear that such forms do not bar
disclosures to Congress or to an authorized official of an
executive agency or the Department of Justice that are
essential to reporting a substantial violation of law.
(k) Clarification of Whistleblower Rights for Critical
Infrastructure Information.--Section 214(c) of the Homeland
Security Act of 2002 (6 U.S.C. 133(c)) is amended by adding
at the end the following: ``For purposes of this section a
permissible use of independently obtained information
includes the disclosure of such information under section
2302(b)(8) of title 5, United States Code.''.
(l) Advising Employees of Rights.--Section 2302(c) of title
5, United States Code, is amended by inserting ``, including
how to make a lawful disclosure of information that is
specifically required by law or Executive order to be kept
secret in the interest of national defense or the conduct of
foreign affairs to the Special Counsel, the Inspector General
of an agency, Congress, or other agency employee designated
to receive such disclosures'' after ``chapter 12 of this
title''.
(m) Scope of Due Process.--
(1) Special counsel.--Section 1214(b)(4)(B)(ii) of title 5,
United States Code, is amended by inserting ``, after a
finding that a protected disclosure was a contributing
factor,'' after ``ordered if''.
(2) Individual action.--Section 1221(e)(2) of title 5,
United States Code, is amended by inserting ``, after a
finding that a protected disclosure was a contributing
factor,'' after ``ordered if''.
(n) Effective Date.--This section and the amendment made by
this section shall take effect 30 days after the date of the
enactment of this Act.
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