S.Amdt. 2145

1. Rewrites section 862 of section 861

   Replaces

   Removes section 862 of section 861.

   Inserted: SEC. 843. PROHIBITION ON PROVIDING FUNDS TO THE ENEMY.

   Inserted: (a) Statement of Policy.--It shall be the policy of the United States that--

   Inserted: (1) executive agencies shall not provide funds through a contract, grant, or cooperative agreement with a person or entity that is directly or indirectly supporting a designated terrorist organization or supporting a force against which the United States is actively engaged in hostilities in accordance with the law of armed conflict; and

   Inserted: (2) executive agencies shall not provide funds through a contract, grant, or cooperative agreement with a person or entity that fails to exercise due diligence to ensure that none of the funds, including goods and services, received under a contract, grant, or cooperative agreement of the United States Government are provided directly or indirectly to a person or entity that is supporting a designated terrorist organization or supporting a force against which the United States is actively engaged in hostilities in accordance with the law of armed conflict.

   Inserted: (b) Identification of Persons and Entities.--The Secretary of Defense shall, in conjunction with the Director of National Intelligence, designate in each geographic combatant command an element to carry out intelligence missions within the area of responsibility of such combatant command outside the United States to identify persons and entities that--

   Inserted: (1) provide funds, including goods and services, received under a contract, grant, or cooperative agreement of an executive agency directly or indirectly to a person or entity that is supporting a designated terrorist organization or supporting a force against which the United States is actively engaged in hostilities in accordance with the law of armed conflict; or

   Inserted: (2) fail to exercise due diligence to ensure that none of the funds, including goods and services, received under a contract, grant, or cooperative agreement of an executive agency are provided directly or indirectly to a person or entity that is supporting a designated terrorist organization or supporting a force against which the United States is actively engaged in hostilities in accordance with the law of armed conflict.

   Inserted: (c) Agency Actions on Identification of Persons or Entities.--

   Inserted: (1) Identification.--Not later than 270 days after the date of the enactment of this Act, the head of each executive agency shall carry out a program to use available intelligence (including information made available pursuant to subsections (b) and (i)(1)) to--

   Inserted: (A) review persons and entities who receive United States funds, including goods and services, through contracts, grants, and cooperative agreements performed for such executive agency; and

   Inserted: (B) identify any such persons and entities who are providing funds, including goods and services, received under a contract, grant, or cooperative agreement of such executive agency directly or indirectly to a person or entity that is supporting a designated terrorist organization or supporting a force against which the United States is actively engaged in hostilities in accordance with the law of armed conflict.

   Inserted: (2) Discharge by dod through commanders of combatant commands.--The Secretary of Defense shall carry out the program required by paragraph (1) through the commanders of the geographic combatant commands.

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   Inserted: (3) Notification of contracting activities.--If the head of an executive agency (or the designee of such head) or the commander of a geographic combatant command identifies a person or entity that is supporting a designated terrorist organization or supporting a force against which the United States is actively engaged in hostilities in accordance with the law of armed conflict, the head of such executive agency (or designee) or commander, as the case may be, shall notify the heads of contracting activities, or other appropriate officials, of the executive agencies in writing of such identification. Any written notification pursuant to this paragraph shall be made in accordance with procedures established to implement the revisions of regulations required by this section.

   Inserted: (d) Authority To Terminate or Void Contracts, Grants, and Cooperative Agreements and To Restrict Future Award.--

   Inserted: (1) In general.--Not later than 270 days after the date of the enactment of this Act, applicable regulations shall be revised to provide that, upon notice from the head of an executive agency (or the designee of such head) or the commander of a geographic combatant command under subsection (c)(3), the head of contracting activity, or other appropriate official, of an executive agency may do the following:

   Inserted: (A) If the notice is that a person or entity has been identified as providing funds, including goods and services, received under a contract, grant, or cooperative agreement of the executive agency directly or indirectly to a person or entity that is supporting a designated terrorist organization or supporting a force against which the United States is actively engaged in hostilities in accordance with the law of armed conflict--

   Inserted: (i) either--

   Inserted: (I) terminate for default the contract, grant, or cooperative agreement; or

   Inserted: (II) void the contract, grant, or cooperative agreement in whole or in part; and

   Inserted: (ii) restrict the future award of contracts, grants, or cooperative agreements of the executive agency to the person or entity so identified.

   Inserted: (B) If the notice is that the person or entity has failed to exercise due diligence to ensure that none of the funds, including goods and services, received under a contract, grant, or cooperative agreement of the executive agency are provided directly or indirectly to a person or entity that is supporting a designated terrorist organization or supporting a force against which the United States is actively engaged in hostilities in accordance with the law of armed conflict, terminate for default, in whole or in part, the contract, grant, or cooperative agreement.

   Inserted: (2) Treatment as void.--For purposes of this section:

   Inserted: (A) A contract, grant, or cooperative agreement that is void is unenforceable as contrary to public policy.

   Inserted: (B) A contract, grant, or cooperative agreement that is void in part is unenforceable as contrary to public policy with regard to a segregable task or effort under the contract, grant, or cooperative agreement.

   Inserted: (e) Clause.--

   Inserted: (1) In general.--Not later than 270 days after the date of the enactment of this Act, applicable regulations shall be revised to require that--

   Inserted: (A) the clause described in paragraph (2) shall be included in each covered contract, grant, and cooperative agreement of an executive agency that is awarded on or after the date of the enactment of this Act; and

   Inserted: (B) to the maximum extent practicable, each covered contract, grant, and cooperative agreement of an executive agency that is awarded before the date of the enactment of this Act shall be modified to include the clause described in paragraph (2), other than the matter provided for in subparagraph (A) of that paragraph.

   Inserted: (2) Clause described.--The clause described in this paragraph is a clause that--

   Inserted: (A) requires the contractor, or the recipient of the grant or cooperative agreement, to certify in connection with entry into the contract, grant, or cooperative agreement that the contractor or recipient, as the case may be, has never knowingly provided funds, including goods and services, directly or indirectly to a person or entity that is supporting a designated terrorist organization or supporting a force against which the United States is actively engaged in hostilities in accordance with the law of armed conflict;

   Inserted: (B) requires the contractor, or the recipient of the grant or cooperative agreement, to exercise due diligence to ensure that none of the funds, including goods and services, received under the contract, grant, or cooperative agreement are provided directly or indirectly to a person or entity that is supporting a designated terrorist organization or supporting a force against which the United States is actively engaged in hostilities in accordance with the law of armed conflict; and

   Inserted: (C) notifies the contractor, or the recipient of the grant or cooperative agreement, of the authority of the head of the contracting activity, or other appropriate official, to terminate or void the contract, grant, or cooperative agreement, in whole or in part, as provided in subsection (d).

   Inserted: (3) Covered contract, grant, or cooperative agreement defined.--In this subsection, the term "covered contract, grant, or cooperative agreement" means a contract, grant, or cooperative agreement with an estimated value in excess of $20,000.

   Inserted: (f) Requirements Following Contract Actions.--Not later than 270 days after the date of the enactment of this Act, applicable regulations shall be revised as follows:

   Inserted: (1) To require that any head of contracting activity, or other appropriate official, taking an action under subsection (d) to terminate, void, or restrict a contract, grant, or cooperative agreement notify in writing the contractor or recipient of the grant or cooperative agreement, as applicable, of the action.

   Inserted: (2) To permit, in such manner as such regulations, as so revised, shall provide, the contractor or recipient of a grant or cooperative agreement subject to an action taken under subsection (d) to terminate or void the contract, grant, or cooperative agreement, as the case may be, an opportunity to contest the action within 30 days of receipt of notice of the action.

   Inserted: (g) Annual Review; Protection of Classified Information.--

   Inserted: (1) Annual review.--The heads of executive agencies (or the designees of such heads) and the commanders of the geographic combatant commands shall, on an annual basis, review the lists of persons and entities previously covered by a notice under subsection (c)(3) as having been identified pursuant to subsection (c)(1)(B) in order to determine whether or not such persons and entities continue to warrant identification pursuant to subsection (c)((1)(B). If the head of an executive agency (or designee) or commander determines pursuant to such a review that a person or entity no longer warrants identification pursuant to subsection (c)(1)(B), the head of the executive agency (or designee) or commander, as the case may be, shall notify the heads of contracting activities, or other appropriate officials, of the executive agencies in writing of such determination.

   Inserted: (2) Protection of classified information.--Classified information relied upon to make an identification in accordance with subsection (b) or (c) may not be disclosed to a contractor or a recipient of a grant or cooperative agreement with respect to which an action is taken pursuant to the authority provided in subsection (d), or to their representatives, in the absence of a protective order issued by a court of competent jurisdiction established under Article I or Article III of the Constitution of the United States that specifically addresses the conditions upon which such classified information may be so disclosed.

   Inserted: (h) Delegation of Certain Responsibilities.--

   Inserted: (1) Combatant command responsibility to identify and provide notice.--The commander of a geographic combatant command may delegate the responsibilities in paragraphs (1) through(3) of subsection (c) to the deputy commander of that combatant command. Any delegation of responsibilities under this paragraph shall be made in writing.

   Inserted: (2) Nondelegation of responsibility for certain actions.--The authority provided by subsection (d) to terminate, void, or restrict contracts, grants, and cooperative agreements, in whole or in part, may not be delegated below the level of head of contracting activity or equivalent official for purposes of grants or cooperative agreements.

   Inserted: (i) Additional Responsibilities of Executive Agencies.--

   Inserted: (1) Sharing of information on supporters of the enemy.--The Secretary of Defense shall, in consultation with the Director of the Office of Management and Budget, carry out a program through which agency components may provide information to heads of executive agencies (or the designees of such heads) and the commanders of the geographic combatant commands relating to persons or entities who may be providing funds, including goods and services, received under contracts, grants, or cooperative agreements of the executive agencies directly or indirectly to a person or entity that is supporting a designated terrorist organization or supporting a force against which the United States is actively engaged in hostilities in accordance with the law of armed conflict. The program shall be designed to facilitate and encourage the sharing of risk and threat information between executive agencies and the geographic combatant commands.

   Inserted: (2) Inclusion of information on contract actions in fapiis and other systems.--Upon the termination, voiding, or restriction of a contract, grant, or cooperative agreement of an executive agency under subsection (c), the head of contracting activity, or other appropriate official, of the executive agency shall provide for the inclusion in the Federal Awardee Performance and Integrity Information System (FAPIIS), or other formal system of records on contractors or entities, of appropriate information on the termination, voiding, or restriction, as the case may be, of the contract, grant, or cooperative agreement.

   Inserted: (3) Reports.--The head of contracting activity, or other appropriate official, that receives a notice pursuant to subsection (c)(3) shall submit to the head of the executive agency (or designee) concerned or the appropriate geographic combatant command, as the case may be, a report on the action, if any, taken by the head of contracting activity pursuant to subsection (d), including a determination not to terminate, void, or restrict the contract, grant, or cooperative agreement as otherwise authorized by subsection (d). This paragraph shall expire on the date that is three years after the date of the enactment of this Act.

   Inserted: (j) Reports.--

   Inserted: (1) In general.--Not later than March 1 of 2015, 2016, and 2017, the Director of the Office of Management and Budget shall submit to the appropriate committees of Congress a report on the use of the authorities in this section in the preceding calendar year, including the following:

   Inserted: (A) For each instance in which an executive agency exercised the authority to terminate, void, or restrict a contract, grant, and cooperative agreement pursuant to subsection (d), based on a notification under subsection (c)(3), the following:

   Inserted: (i) The executive agency taking such action.

   Inserted: (ii) An explanation of the basis for the action taken.

   Inserted: (iii) The value of the contract, grant, or cooperative agreement voided or terminated.

   Inserted: (iv) The value of all contracts, grants, or cooperative agreements of the executive agency in force with the person or entity concerned at the time the contract, grant, or cooperative agreement was terminated or voided.

   Inserted: (B) For each instance in which an executive agency did not exercise the authority to terminate, void, or restrict a contract, grant, and cooperative agreement pursuant to subsection (d), based on a notification under subsection (c)(3), the following:

   Inserted: (i) The executive agency concerned.

   Inserted: (ii) An explanation why the action was not taken.

   Inserted: (2) Form.--Any report under this subsection may be submitted in classified form.

   Inserted: (k) Other Definitions.--In this section:

   Inserted: (1) The term "appropriate committees of Congress" means--

   Inserted: (A) the Committee on Armed Services, the Committee on Homeland Security and Governmental Affairs, the Committee on Foreign Relations, and the Committee on Appropriations of the Senate; and

   Inserted: (B) the Committee on Armed Services, the Committee on Oversight and Government Reform, the Committee on Foreign Affairs, and the Committee on Appropriations of the House of Representatives.

   Inserted: (2) The term "combatant command" means a command established pursuant to chapter 6 of title 10, United States Code.

   Inserted: (3) The term "contract" includes a contract for commercial items but is not limited to a contract for commercial items.

   Inserted: (4) The term "designated terrorist organization" means any organization designated as a terrorist organization under section 219(a) of the Immigration and Nationality Act (8 U.S.C. 1189(a)).

   Inserted: (5) The term "executive agency" has the meaning given that term in section 133 of title 41, United States Code.

   Inserted: (6) The term "head of contracting activity" has the meaning given that term in subpart 601 of part 1 of the Federal Acquisition Regulation.

   Inserted: (l) Coordination With Current Authorities Applicable to CENTCOM.--

   Inserted: (1) Repeal of superseded authority.--Effective 270 days after the date of the enactment of this Act, section 841 of the National Defense Authorization Act for Fiscal Year 2012 (Public Law 112-81; 125 Stat. 1510; 10 U.S.C. 2302 note) is repealed.

   Inserted: (2) Use of superseded authorities in discharge of requirements.--In providing for the discharge of the requirements of this section by the Department of Defense, the Secretary of Defense may use and modify for that purpose requirements and procedures established by the Secretary for purposes of the discharge of the requirements of section 841 of the National Defense Authorization Act for Fiscal Year 2012.

   Inserted: SEC. 844. ADDITIONAL ACCESS TO RECORDS.

   Inserted: (a) Contracts, Grants, and Cooperative Agreements.--

   Inserted: (1) In general.--Not later than 270 days after the date of the enactment of this Act, applicable regulations shall be revised to require that the clause described in paragraph (2) shall be included in each covered contract, grant, and cooperative agreement of an executive agency that is awarded on or after the date of the enactment of this Act.

   Inserted: (2) Clause.--The clause described in this paragraph is a clause authorizing the head of the executive agency concerned, upon a written determination pursuant to paragraph (3), to examine any records of the contractor, the recipient of a grant or cooperative agreement, or any subcontractor or subgrantee under such contract, grant, or cooperative agreement to the extent necessary to ensure that funds, including goods and services, available under the contract, grant, or cooperative agreement are not provided directly or indirectly to a person or entity that is supporting a designated terrorist organization or supporting a force against which the United States is actively engaged in hostilities in accordance with the law of armed conflict.

   Inserted: (3) Written determination.--The authority to examine records pursuant to the contract clause described in paragraph (2) may be exercised only upon a written determination by the contracting officer or comparable official responsible for a grant or cooperative agreement, upon a finding by the commander of a geographic combatant command or the head of an executive agency (or the designee of such head) that there is reason to believe that funds, including goods and services, available under the contract, grant, or cooperative agreement concerned may have been provided directly or indirectly to a person or entity that is supporting a designated terrorist organization or supporting a force against which the United States is actively engaged in hostilities in accordance with the law of armed conflict.

   Inserted: (4) Flowdown.--A clause described in paragraph (2) shall also be required in any subcontract or subgrant under a covered contract, grant, or cooperative agreement if the subcontract or subgrant has an estimated value in excess of $20,000.

   Inserted: (b) Reports.--

   Inserted: (1) In general.--Not later than March 1 of 2015, 2016, and 2017, the Director of the Office of Management and Budget shall submit to the appropriate committees of Congress a report on the use of the authority provided by this section in the preceding calendar year.

   Inserted: (2) Elements.--Each report under this subsection shall identify, for the calendar year covered by such report, each instance in which an executive agency exercised the authority provided under this section to examine records, explain the basis for the action taken, and summarize the results of any examination of records so undertaken.

   Inserted: (3) Form.--Any report under this subsection may be submitted in classified form.

   Inserted: (c) Definitions.--In this section:

   Inserted: (1) The term "appropriate committees of Congress" means--

   Inserted: (A) the Committee on Armed Services, the Committee on Homeland Security and Governmental Affairs, the Committee on Foreign Relations, and the Committee on Appropriations of the Senate; and

   Inserted: (B) the Committee on Armed Services, the Committee on Oversight and Government Reform, the Committee on Foreign Affairs, and the Committee on Appropriations of the House of Representatives.

   Inserted: (2) The term "combatant command" means a command established pursuant to chapter 6 of title 10, United States Code.

   Inserted: (3) The term "contract" includes a contract for commercial items but is not limited to a contract for commercial items.

   Inserted: (4) The term "covered contract, grant, or cooperative agreement" means a contract, grant, or cooperative agreement with an estimated value in excess of $20,000.

   Inserted: (5) The term "designated terrorist organization" means any organization designated as a terrorist organization under section 219(a) of the Immigration and Nationality Act (8 U.S.C. 1189(a)).

   Inserted: (6) The term "executive agency" has the meaning given that term in section 133 of title 41, United States Code.

   Inserted: (d) Coordination With Current Authorities Applicable to CENTCOM.--

   Inserted: (1) Repeal of superseded authority.--Effective 270 days after the date of the enactment of this Act, section 842 of the National Defense Authorization Act for Fiscal Year 2012 (Public Law 112-81; 125 Stat. 1513; 10 U.S.C. 2313 note) is repealed.

   Inserted: (2) Use of superseded authorities in discharge of requirements.--In providing for the discharge of the requirements of this section by the Department of Defense, the Secretary of Defense may use and modify for that purpose the regulations and procedures established for purposes of the discharge of the requirements of section 842 of the National Defense Authorization Act for Fiscal Year 2012.

   Original wording

   Strike sections 861 and 862 and insert the following:

Read automatically from the Congressional Record. Check the original before relying on it.

As printed