S.Amdt. 3743

1. Adds Subtitle E--Never Contract With the Enemy SEC. 1271. SHORT TITLE at the end of title VIII

   Adds a section

   In S. 2410 · Placed on Calendar Senate

   Section 2216a(e) of title 10, United States Code, is amended by striking "September 30, 2015" and inserting "September 30, 2018".

   Inserted: Subtitle E--Never Contract With the Enemy SEC. 1271. SHORT TITLE.

   Inserted: This Act may be cited as the "Never Contract With the Enemy Act".

   Inserted: SEC. 1272. PROHIBITION ON PROVIDING FUNDS TO THE ENEMY.

   Inserted: (a) Identification of Persons and Entities.--The Secretary of Defense shall, in conjunction with the Director of National Intelligence and in consultation with the Secretary of State, establish in each covered combatant command a program to identify persons and entities within the area of responsibility of such command 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 covered person or entity; 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 covered person or entity.

   Inserted: (b) Notice of Identified Persons and Entities.--

   Inserted: (1) Notice.--Upon the identification of a person or entity as being described by subsection (a), the head of an executive agency (or the designee of such head) or the commander of a covered combatant command (or the specified deputies of the commander) shall be notified, in writing, of such identification of the person or entity.

   Inserted: (2) Responsive actions.--Upon receipt of a notice under paragraph (1), the head of an executive agency (or the designee of such head) or the commander of a covered combatant command (or the specified deputies of the commander) may notify the heads of contracting activities, or other appropriate officials of the agency or command, in writing of such identification.

   Inserted: (3) Making of notifications.--Any written notification pursuant to this subsection shall be made in accordance with procedures established to implement the revisions of regulations required by this section.

   Inserted: (c) Authority to Terminate or Void Contracts, Grants, and Cooperative Agreements and to Restrict Future Award.--Not later than 270 days after the date of the enactment of this Act, the Federal Acquisition Regulation, the Defense Federal Acquisition Regulation Supplement, and the Uniform Administrative Requirements, Cost Principles, and Account Requirements for Federal Awards 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 covered combatant command (or the specified deputies of the commander) pursuant to subsection (b), the head of contracting activity of an executive agency, or other appropriate official, may do the following:

   Inserted: (1) Restrict the award of contracts, grants, or cooperative agreements of the executive agency concerned upon a written determination by the head of contracting activity or other appropriate official that the contract, grant, or cooperative agreement would provide funds received under such contract, grant, or cooperative agreement directly or indirectly to a covered person or entity.

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   Inserted: (2) Terminate for default any contract, grant, or cooperative agreement of the executive agency concerned upon a written determination by the head of contracting activity or other appropriate official that the contractor, or the recipient of the grant or cooperative agreement, has failed to exercise due diligence to ensure that none of the funds received under the contract, grant, or cooperative agreement are provided directly or indirectly to a covered person or entity.

   Inserted: (3) Void in whole or in part any contract, grant, or cooperative agreement of the executive agency concerned upon a written determination by the head of contracting activity or other appropriate official that the contract, grant, or cooperative agreement provides funds directly or indirectly to a covered person or entity.

   Inserted: (d) Clause.--

   Inserted: (1) In general.--Not later than 270 days after the date of the enactment of this Act, the Federal Acquisition Regulation, the Defense Federal Acquisition Regulation Supplement, and the Uniform Administrative Requirements, Cost Principles, and Account Requirements for Federal Awards 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 that is 270 days 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).

   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 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 covered person or entity; and

   Inserted: (B) 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 (c).

   Inserted: (3) 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: (4) Public comment.--The President shall ensure that the process for amending regulations required by paragraph (1) shall include an opportunity for public comment, including an opportunity for comment on standards of due diligence required by this Act.

   Inserted: (e) Requirements Following Contract Actions.--Not later than 270 days after the date of the enactment of this Act, the Federal Acquisition Regulation, the Defense Federal Acquisition Regulation Supplement, and the Uniform Administrative Requirements, Cost Principles, and Account Requirements for Federal Awards shall be revised as follows:

   Inserted: (1) To require that any head of contracting activity, or other appropriate official, taking an action under subsection (c) 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 the contractor or recipient of a grant or cooperative agreement subject to an action taken under subsection (c) to terminate or void the contract, grant, or cooperative agreement, as the case may be, an opportunity to challenge the action by requesting an administrative review of the action under the procedures of the executive agency concerned not later than 30 days after receipt of notice of the action.

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

   Inserted: (1) Annual review.--The Secretary of Defense, in conjunction with the Director of National Intelligence and in consultation with the Secretary of State shall, on an annual basis, review the lists of persons and entities previously covered by a notice under subsection (b) as having been identified as described by subsection (a) in order to determine whether or not such persons and entities continue to warrant identification as described by subsection (a). If a determination is made pursuant to such a review that a person or entity no longer warrants identification as described by subsection (a), the Secretary of Defense shall notify the head of an executive agency (or designee) or commander (or deputy), as the case may be, in writing of such determination.

   Inserted: (2) Protection of classified information.--Classified information relied upon to make an identification in accordance with subsection (a) 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 (c), 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: (g) Delegation of Certain Responsibilities.--

   Inserted: (1) Combatant command responsibilities.--The commander of a covered combatant command may delegate the responsibilities in this section to any deputies of the commander specified by the commander for purposes of this section. 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 (c) 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: (h) 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 covered combatant commands (or the specified deputies of the commanders) 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 covered person or entity. The program shall be designed to facilitate and encourage the sharing of risk and threat information between executive agencies and the covered 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 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 that receives a notice pursuant to subsection (b) shall submit to the head of the executive agency (or designee) concerned or the appropriate covered combatant command, as the case may be, a report on the action, if any, taken by the head of contracting activity pursuant to subsection (c), including a determination not to terminate, void, or restrict the contract, grant, or cooperative agreement as otherwise authorized by subsection (c).

   Inserted: (i) Reports.--

   Inserted: (1) In general.--Not later than March 1 of 2016, 2017, and 2018, 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 (c), based on a notification under subsection (b), 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 (c), based on a notification under subsection (b), 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, at the election of the Director--

   Inserted: (A) be submitted in unclassified form, but with a classified annex; or

   Inserted: (B) be submitted in classified form.

   Inserted: (j) National Security Exception.--Nothing in this section shall apply to the authorized intelligence or law enforcement activities of the United States Government.

   Inserted: (k) Construction With Other Authorities.--Except as provided in subsection (l), the authorities in this section shall be in addition to, and not to the exclusion of, any other authorities available to executive agencies to implement policies and purposes similar to those set forth in this section.

   Inserted: (l) Coordination With Current Authorities.--

   Inserted: (1) Repeal of superseded authority related to centcom.--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. 1513; 10 U.S.C. 2313 note) is repealed.

   Inserted: (2) Repeal of superseded authority related to department of defense.--Effective 270 days after the date of the enactment of this Act, section 831 of the National Defense Authorization Act for Fiscal Year 2014 (Public Law 113-66; 127 Stat. 810; 10 U.S.C. 2302 note) is repealed.

   Inserted: (3) 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 841 of the National Defense Authorization Act for Fiscal Year 2012 and section 831 of the National Defense Authorization Act for Fiscal Year 2014.

   Inserted: (m) Sunset.--The provisions of this section shall cease to be effective on December 31, 2019.

   Inserted: SEC. 1273. 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 provide that, except as provided under subsection (c)(1), the clause described in paragraph (2) may, as appropriate, 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 covered person or entity.

   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 covered combatant command (or the specified deputies of the commander) 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 covered person or entity.

   Inserted: (4) Flowdown.--A clause described in paragraph (2) may also be included 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 $50,000.

   Inserted: (b) Reports.--

   Inserted: (1) In general.--Not later than March 1 of 2016, 2017, and 2018, 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) Relationship to Existing Authorities Applicable to CENTCOM.--

   Inserted: (1) Applicability.--This section shall not apply to contracts, grants, or cooperative agreements covered under section 842 of the National Defense Authorization Act for Fiscal Year 2012 (Public Law 112-81; 125 Stat. 1510; 10 U.S.C. 2302 note).

   Inserted: (2) Extension of current authorities applicable to centcom.--Section 842 of the National Defense Authorization Act for Fiscal Year 2012 (Public Law 112-81; 125 Stat. 1510; 10 U.S.C. 2302 note) is amended by striking "date of the enactment of this Act" and inserting "date of the enactment of the Carl Levin National Defense Authorization Act for Fiscal Year 2015".

   Inserted: SEC. 1274. DEFINITIONS.

   Inserted: In this subtitle:

   Inserted: (1) Appropriate committees of congress.--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) Contingency operation.--The term "contingency operation" has the meaning given that term in section 101(a)(13) of title 10, United States Code.

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

   Inserted: (4) Covered combatant command.--The term "covered combatant command" means the following:

   Inserted: (A) The United States Africa Command.

   Inserted: (B) The United States Central Command.

   Inserted: (C) The United States European Command.

   Inserted: (D) The United States Pacific Command.

   Inserted: (E) The United States Southern Command.

   Inserted: (5) Covered contract, grant, or cooperative agreement defined.--The term "covered contract, grant, or cooperative agreement" means a contract, grant, or cooperative agreement with an estimated value in excess of $50,000 that is performed outside the United States, including its possessions and territories, in support of a contingency operation.

   Inserted: (6) Covered person or entity.--The term "covered person or entity" means a person or entity that is actively opposing United States or coalition forces involved in a contingency operation in which members of the Armed Forces are actively engaged in hostilities.

   Inserted: (7) Executive agency.--The term "executive agency" has the meaning given that term in section 133 of title 41, United States Code.

   Inserted: (8) Head of contracting activity.--The term "head of contracting activity" has the meaning given that term in subpart 601 of part 1 of the Federal Acquisition Regulation.

   Original wording

   At the end of title VIII, add the following:

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As printed