[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 3139 Introduced in Senate (IS)]
110th CONGRESS
2d Session
S. 3139
To provide for greater accountability and transparency in the Federal
contracting process, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
June 16, 2008
Mrs. Clinton introduced the following bill; which was read twice and
referred to the Committee on Homeland Security and Governmental Affairs
_______________________________________________________________________
A BILL
To provide for greater accountability and transparency in the Federal
contracting process, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Oversight of the
Performance and Effectiveness of National Contracting Act of 2008''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Definitions.
TITLE I--ACCOUNTABILITY FOR CONTRACTORS
Sec. 101. Governmental policy.
Sec. 102. Prohibition on awarding of Government contracts or grants to
companies purposefully organized in an
offshore secrecy jurisdiction to avoid
Federal tax obligations.
Sec. 103. Prohibition on contracting with companies without financial
report certifications.
Sec. 104. Requirement for Federal contractors to possess satisfactory
record of integrity and business ethics.
Sec. 105. Preventing conflicts of interest of contractor personnel.
Sec. 106. Award fees.
TITLE II--COMPETITION AND TRANSPARENCY
Sec. 201. Database for contracting officers.
Sec. 202. Enhancement of contracting information disclosed on
USASpending.gov.
TITLE III--BUILDING A BETTER FEDERAL GOVERNMENT WORKFORCE
Sec. 301. Contractors and inherently governmental functions.
TITLE IV--DISCLOSURE EXCEPTIONS
Sec. 401. Exceptions to disclosure requirements.
SEC. 2. DEFINITIONS.
In this Act:
(1) Executive agency.--The term ``executive agency'' has
the meaning given the term in section 4 of the Office of
Federal Procurement Policy (41 U.S.C. 403).
(2) Functions closely associated with governmental
functions.--The term ``functions closely associated with a
governmental functions'' means functions described in section
7.503(d) of the Federal Acquisition Regulation.
(3) Inherently governmental functions.--The term
``inherently governmental functions'' has the meaning given the
term in section 2.101 of the Federal Acquisition Regulation.
TITLE I--ACCOUNTABILITY FOR CONTRACTORS
SEC. 101. GOVERNMENTAL POLICY.
It is the policy of the United States Government that no Government
contracts or grants should be awarded to companies purposefully
organized in an offshore secrecy jurisdiction to avoid Federal tax
obligations.
SEC. 102. PROHIBITION ON AWARDING OF GOVERNMENT CONTRACTS OR GRANTS TO
COMPANIES PURPOSEFULLY ORGANIZED IN AN OFFSHORE SECRECY
JURISDICTION TO AVOID FEDERAL TAX OBLIGATIONS.
(a) In General.--The head of any Executive agency that issues an
invitation for bids or a request for proposals for a contract or offers
a grant may not award such contract or grant to any person which is an
offshore secrecy jurisdiction company.
(b) Regulations and Guidance.--
(1) In general.--Not later than 210 days after the date of
the enactment of this section (including a period of not more
than 30 days for comment), the Director of the Office of
Management and Budget and the Secretary shall adopt and revise
such regulations or guidance as necessary to incorporate the
requirements of this section, including procedures under
which--
(A) the Commissioner of Internal Revenue shall
notify the head of each Executive agency of any
determination that a person is an offshore secrecy
jurisdiction company; and
(B) any person that is no longer determined by the
Commissioner of Internal Revenue to be an offshore
secrecy jurisdiction company can petition for
reinstatement as a person eligible for the awarding of
any such contract or grant.
(2) Determination of offshore secrecy jurisdiction
company.--As part of the regulations or guidance under
paragraph (1), the Secretary shall provide guidelines for the
determination by the Commissioner of Internal Revenue on
whether a person is purposefully organized in an offshore
secrecy jurisdiction to avoid Federal tax obligations. Such
guidelines shall provide that as part of such determination,
the Commissioner of Internal Revenue shall review--
(A) whether such organization changes in a
meaningful way (apart from Federal tax effects) the
persons's economic position;
(B) whether such person has a substantial nontax
purpose for organizing in an offshore secrecy
jurisdiction and whether the organization is a
reasonable means of accomplishing such purpose;
(C) whether the present value of the reasonably
expected pre-tax profit attributable to the person's
organization in an offshore secrecy jurisdiction is
substantial in relation to the present value of the
expected net tax benefits of such organization; and
(D) whether the reasonably expected pre-tax profit
attributable to the person's organization in an
offshore secrecy jurisdiction exceeds a risk-free rate
of return.
In applying subparagraph (B), a purpose of achieving a
financial accounting benefit shall not be taken into account in
determining whether an organization has a substantial nontax
purpose if the origin of such financial accounting benefit is a
reduction of Federal income tax.
(c) Definitions and Special Rules.--For purposes of this section:
(1) Contract.--The term ``contract'' means a binding
agreement entered into by an Executive agency for the purpose
of obtaining property or services, but does not include--
(A) a contract designated by the head of the agency
as assisting the agency in the performance of disaster
relief authorities; or
(B) a contract designated by the head of the agency
as necessary to the national security of the United
States.
(2) Executive agency.--The term ``executive agency'' has
the meaning given such term in section 4 of the Office of
Federal Procurement Policy Act (41 U.S.C. 403).
(3) Offshore secrecy jurisdiction company.--
(A) In general.--The term ``offshore secrecy
jurisdiction company'' means any person which the
Commissioner of Internal Revenue determines that for
the purpose of avoiding Federal tax obligations--
(i) is organized in an offshore secrecy
jurisdiction; or
(ii) is a member of a domestically
controlled group of entities any member of
which is organized in an offshore secrecy
jurisdiction.
(B) Offshore secrecy jurisdiction.--
(i) In general.--The term ``offshore
secrecy jurisdiction'' means any foreign
jurisdiction which is listed by the Secretary
as an offshore secrecy jurisdiction for
purposes of this title.
(ii) Determination of jurisdictions on
list.--A jurisdiction shall be listed under
clause (i) if the Secretary determines that
such jurisdiction has corporate, business,
bank, or tax secrecy rules and practices which,
in the judgment of the Secretary, unreasonably
restrict the ability of the United States to
obtain information relevant to the enforcement
of the Internal Revenue Code of 1986, unless
the Secretary also determines that such country
has effective information exchange practices.
(iii) Secrecy or confidentiality rules and
practices.--For purposes of clause (ii),
corporate, business, bank, or tax secrecy or
confidentiality rules and practices include
both formal laws and regulations and informal
government or business practices having the
effect of inhibiting access of law enforcement
and tax administration authorities to
beneficial ownership and other financial
information.
(iv) Ineffective information exchange
practices.--For purposes of clause (ii), a
jurisdiction shall be deemed to have
ineffective information exchange practices
unless the Secretary determines, on an annual
basis, that--
(I) such jurisdiction has in effect
a treaty or other information exchange
agreement with the United States that
provides for the prompt, obligatory,
and automatic exchange of such
information as is forseeably relevant
for carrying out the provisions of the
treaty or agreement or the
administration or enforcement of such
Code,
(II) during the 12-month period
preceding the annual determination, the
exchange of information between the
United States and such jurisdiction was
in practice adequate to prevent evasion
or avoidance of United States income
tax by United States persons and to
enable the United States effectively to
enforce such Code, and
(III) during the 12-month period
preceding the annual determination,
such jurisdiction was not identified by
an intergovernmental group or
organization of which the United States
is a member as uncooperative with
international tax enforcement or
information exchange and the United
States concurs in such identification.
(v) Initial list of offshore secrecy
jurisdictions.--For purposes of this
subparagraph, each of the following foreign
jurisdictions, which have been previously and
publicly identified by the Internal Revenue
Service as secrecy jurisdictions in Federal
court proceedings, shall be deemed listed by
the Secretary as an offshore secrecy
jurisdiction unless delisted by the Secretary
under clause (vi)(II):
(I) Anguilla.
(II) Antigua and Barbuda.
(III) Aruba.
(IV) Bahamas.
(V) Barbados.
(VI) Belize.
(VII) Bermuda.
(VIII) British Virgin Islands.
(IX) Cayman Islands.
(X) Cook Islands.
(XI) Costa Rica.
(XII) Cyprus.
(XIII) Dominica.
(XIV) Gibraltar.
(XV) Grenada.
(XVI) Guernsey/Sark/Alderney.
(XVII) Hong Kong.
(XVIII) Isle of Man.
(XIX) Jersey.
(XX) Latvia.
(XXI) Liechtenstein.
(XXII) Luxembourg.
(XXIII) Malta.
(XXIV) Nauru.
(XXV) Netherlands Antilles.
(XXVI) Panama.
(XXVII) Samoa.
(XXVIII) St. Kitts and Nevis.
(XXIX) St. Lucia.
(XXX) St. Vincent and the
Grenadines.
(XXXI) Singapore.
(XXXII) Switzerland.
(XXXIII) Turks and Caicos.
(XXXIV) Vanuatu.
(vi) Modifications to list.--The
Secretary--
(I) shall add to the list under
clause (i) jurisdictions which meet the
requirements of clause (ii), and
(II) may remove from such list only
those jurisdictions which meet none of
the requirements of clause (ii).
(C) Domestically controlled group of entities.--For
purposes of this subsection--
(i) In general.--The term ``domestically
controlled group of entities'' means a
controlled group of entities the common parent
of which is a domestic corporation.
(ii) Controlled group of entities.--The
term ``controlled group of entities'' means a
controlled group of corporations as defined in
section 1563(a)(1) of the Internal Revenue Code
of 1986, except that--
(I) ``more than 50 percent'' shall
be substituted for ``at least 80
percent'' each place it appears
therein, and
(II) the determination shall be
made without regard to subsections
(a)(4) and (b)(2) of section 1563 of
such Code.
A partnership or any other entity (other than a
corporation) shall be treated as a member of a
controlled group of entities if such entity is
controlled (within the meaning of section
954(d)(3) of such Code) by members of such
group (including any entity treated as a member
of such group by reason of this sentence).
(4) Person.--The term ``person'' means--
(A) a corporation; or
(B) a partnership or any other entity (other than a
corporation).
(5) Secretary.--The term ``Secretary'' means the Secretary
of the Treasury or the Secretary's delegate.
(d) Report.--The Secretary shall make an annual report to Congress
and the Office of Management and Budget beginning 1 year after the
effective date of this section regarding efforts to make determinations
regarding persons purposefully organized in an offshore secrecy
jurisdiction to avoid Federal tax obligations.
(e) Effective Date.--This section shall apply to contracts and
grants awarded after the date which is 210 days after the date of the
enactment of this Act.
SEC. 103. PROHIBITION ON CONTRACTING WITH COMPANIES WITHOUT FINANCIAL
REPORT CERTIFICATIONS.
(a) Prohibition on Contracting With Companies That Fail To Certify
Financial Reports.--Except as provided under subsection (c), the head
of an executive agency may not enter into or approve any contract or
approve any subcontract under a contract with any company filing
periodic reports under section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (15 U.S.C. 78m, 78o(d)) that has failed to make
the certification required under section 302(a) of the Sarbanes-Oxley
Act of 2002 (15 U.S.C. 7241(a)) for the most recent periodic report
due.
(b) Period of Prohibition.--A prohibition under subsection (a)
shall remain in effect with respect to a company for the one-year
period beginning on the date that the periodic report for which the
certification was not made was due.
(c) Waiver.--
(1) In general.--The head of an executive agency may waive
the prohibition under subsection (a) with respect to a contract
if such agency head determines that--
(A) the waiver is in the national security interest
of the United States; or
(B) the failure of the company to make the
certification required under section 302(a) of the
Sarbanes-Oxley Act of 2002 (15 U.S.C. 7241(a)) was a
minor or technical infraction.
(2) Justifications.--
(A) National security waiver.--The head of an
executive agency granting a waiver under paragraph
(1)(A) shall submit a justification for the waiver to
the Director of the Office of Management and Budget and
the chairs and ranking members of the appropriate
oversight committees of Congress.
(B) Waiver for minor or technical infraction.--The
head of an executive agency granting a waiver under
paragraph (1)(B) shall, in coordination with the
company for which the waiver is granted--
(i) submit a justification for the waiver
to the Director of the Office of Management and
Budget and the chairs and ranking members of
the appropriate oversight committees of
Congress; and
(ii) post the justification on the
searchable website required under the Federal
Funding Accountability and Transparency Act of
2006 (Public Law 109-282; 31 U.S.C. 6101 note).
(d) List of Companies Failing To Certify.--The Securities and
Exchange Commission shall make publicly available on the searchable
website required under the Federal Funding Accountability and
Transparency Act of 2006 (Public Law 109-282; 31 U.S.C. 6101 note) a
list of the companies that failed to make the certification required
under section 302(a) of the Sarbanes-Oxley Act of 2002 (15 U.S.C.
7241(a)) for the most recent periodic report due. The list shall be
updated on a quarterly basis.
(e) Applicability.--This section applies to contracts and
subcontracts entered into after the date of the enactment of this Act.
SEC. 104. REQUIREMENT FOR FEDERAL CONTRACTORS TO POSSESS SATISFACTORY
RECORD OF INTEGRITY AND BUSINESS ETHICS.
(a) Defense Contractors.--
(1) In general.--Chapter 137 of title 10, United States
Code, is amended by inserting after section 2305a the following
new section:
``Sec. 2305b. Satisfactory record of integrity and business ethics
``(a) In General.--No prospective contractor may be awarded a
contract with an agency under this title unless the contracting officer
for the contract determines that such prospective contractor has a
satisfactory record of integrity and business ethics, including
satisfactory compliance with the law (including tax, labor and
employment, environmental, antitrust, and consumer protection laws).
``(b) Information To Be Considered.--In making a determination as
to whether a prospective contractor has a satisfactory record of
integrity and business ethics, a contracting officer--
``(1) shall consider all relevant credible information, but
shall give the greatest weight to violations of law that have
been adjudicated within the last 5 years preceding the offer;
``(2) shall give consideration to any administrative
agreements entered into with the prospective contractor if the
prospective contractor has taken corrective action after
disclosing a violation of law, and may consider such a
contractor to be a responsible contractor if the contractor has
corrected the conditions that led to the misconduct;
``(3) shall consider failure to comply with the terms of an
administrative agreement as evidence of a lack of integrity and
business ethics under this section;
``(4) shall consider in descending order of importance--
``(A) convictions of and civil judgments rendered
against the prospective contractor for--
``(i) commission of fraud or a criminal
offense in connection with obtaining,
attempting to obtain, or performing a public
Federal, State, or local contract or
subcontract;
``(ii) violation of Federal or State
antitrust law relating to the submission of
offers; or
``(iii) commission of embezzlement, theft,
forgery, bribery, falsification, or destruction
of records, making false statement, tax
evasion, or receiving stolen property; and
``(B) relative to tax, labor, employment,
environmental, antitrust, or consumer protection laws--
``(i) Federal or State felony convictions;
``(ii) adverse Federal court judgments in
civil cases brought by the United States;
``(iii) adverse decisions by a Federal
administrative law judge, board, or commission
indicating violations of law;
``(iv) Federal or State felony indictments;
and
``(v) any other civil judgment rendered
against the prospective contractor; and
``(5) may consider other relevant information, such as
civil or administrative complaints or similar actions filed by
or on behalf of a Federal agency, board, or commission, if such
action reflects an adjudicated determination by the agency.
``(c) Repeated Violations of Law.--A single violation of law
normally should not give rise to a determination that the prospective
contractor has an unsatisfactory record of integrity and business
ethics, but evidence of repeated, pervasive, or significant violations
of the law may indicate an unsatisfactory record of integrity and
business ethics.''.
(2) Clerical amendment.--The table of sections at the
beginning of such chapter is amended by inserting after the
item relating to section 2305a the following new item:
``2305b. Contractor requirement for satisfactory record of integrity
and business ethics.''.
(b) Civilian Contractors.--Title III of the Federal Property and
Administrative Services Act of 1949 (41 U.S.C. 251 et seq.) is amended
by inserting after section 303L the following new section:
``SEC. 303M. SATISFACTORY RECORD OF INTEGRITY AND BUSINESS ETHICS.
``(a) In General.--No prospective contractor may be awarded a
contract with an executive agency under this title unless the
contracting officer for the contract determines that such prospective
contractor has a satisfactory record of integrity and business ethics,
including satisfactory compliance with the law (including tax, labor
and employment, environmental, antitrust, and consumer protection
laws).
``(b) Information To Be Considered.--In making a determination as
to whether a prospective contractor has a satisfactory record of
integrity and business ethics, a contracting officer--
``(1) shall consider all relevant credible information, but
shall give the greatest weight to violations of law that have
been adjudicated within the last 5 years preceding the offer;
``(2) shall give consideration to any administrative
agreements entered into with the prospective contractor if the
prospective contractor has taken corrective action after
disclosing a violation of law, and may consider such a
contractor to be a responsible contractor if the contractor has
corrected the conditions that led to the misconduct;
``(3) shall consider failure to comply with the terms of an
administrative agreement as evidence of a lack of integrity and
business ethics under this section;
``(4) shall consider in descending order of importance--
``(A) convictions of and civil judgments rendered
against the prospective contractor for--
``(i) commission of fraud or a criminal
offense in connection with obtaining,
attempting to obtain, or performing a public
Federal, State, or local contract or
subcontract;
``(ii) violation of Federal or State
antitrust law relating to the submission of
offers; or
``(iii) commission of embezzlement, theft,
forgery, bribery, falsification, or destruction
of records, making false statement, tax
evasion, or receiving stolen property; and
``(B) relative to tax, labor, employment,
environmental, antitrust, or consumer protection laws--
``(i) Federal or State felony convictions;
``(ii) adverse Federal court judgments in
civil cases brought by the United States;
``(iii) adverse decisions by a Federal
administrative law judge, board, or commission
indicating violations of law; and
``(iv) Federal or State felony indictments;
and
``(5) may consider other relevant information, such as
civil or administrative complaints or similar actions filed by
or on behalf of an executive agency, board, or commission, if
such action reflects an adjudicated determination by the
agency.
``(c) Repeated Violations of Law.--A single violation of law
normally should not give rise to a determination that the prospective
contractor has an unsatisfactory record of integrity and business
ethics, but evidence of repeated, pervasive, or significant violations
of the law may indicate an unsatisfactory record of integrity and
business ethics.''.
(c) Effective Date.--The amendments made by this section shall
apply with respect to contracts for which solicitations are issued
after the date of the enactment of this Act.
SEC. 105. PREVENTING CONFLICTS OF INTEREST OF CONTRACTOR PERSONNEL.
(a) In General.--The head of an executive agency may not enter into
a covered contract unless the contract includes a conflicts of interest
clause as described in subsection (b).
(b) Conflict of Interest Clause.--The conflict of interest clause
required under subsection (a) shall include the following:
(1) A requirement that no employee of the contractor may
perform a covered function relating to a program, company,
contract, or other matter in which the employee (or a member of
the employee's immediate family) has a financial interest
without the express written approval of the contracting
officer.
(2) A requirement that the contractor shall obtain, review,
update, and maintain as part of its personnel records a
financial disclosure statement from each employee assigned to
perform a covered function under the contract sufficient to
enable the contractor to verify compliance of such employee
with the requirements under paragraph (1).
(3) A prohibition against employees of the contractor
responsible for performing a covered function under the
contract relating to a program, company, contract, or other
matter from accepting a gift from the company or from an
individual or entity that has a financial interest in the
program, company, contract, or other matter.
(4) A prohibition against contractor personnel who have
access to non-public government information obtained while
performing work on the contract from using such information for
personal gain.
(5) A requirement that the contractor take appropriate
disciplinary action in the case of employees who fail to comply
with requirements and prohibitions described in this
subsection.
(6) A requirement for the contractor to promptly report any
failure to comply with such requirements and prohibitions to
the contracting officer.
(7) Penalties for failures to comply with the requirements
and prohibitions described in paragraphs (1) through (6).
(8) A requirement that the contractor report any failure to
comply with the requirements and prohibitions described in
paragraphs (1) through (6) to the applicable contracting
officer of the executive agency or representative of such
officer as soon as such failure is identified.
(9) Such additional safeguards, definitions, and exceptions
as may be necessary to safeguard the public interest.
(c) Definitions.--In this section:
(1) The term ``covered contract'' means a contract (or task
or delivery order) in excess of $500,000 for the performance of
functions closely associated with governmental functions.
(2) The term ``covered function'' means an inherently
governmental function or a function described in section
7.503(d) of the Federal Acquisition Regulation.
(d) Effective Date; Applicability.--This section shall take effect
on the date that is 30 days after the date of the enactment of this Act
and shall apply to--
(1) contracts entered into on or after such effective date;
and
(2) task or delivery orders awarded on or after such
effective date, regardless of whether the contracts pursuant to
which such task or delivery orders are awarded were entered
into before, on, or after such effective date.
SEC. 106. AWARD FEES.
(a) Linkage of Award Fees to Successful Acquisition Outcomes.--
Every contract entered into by an executive agency that provides for
award fees shall link such fees to successful acquisition outcomes
(which outcomes shall be specified in terms of cost, schedule, and
performance).
(b) Prohibition on Award of Unwarranted Award Fees.--The head of an
executive agency may not--
(1) award a bonus or other incentive payment to a
contractor for work the contractor did not perform or with
respect to which the contractor received a poor performance
rating; or
(2) provide to a contractor award fees unless the
contractor, to the extent reasonably within the control of the
contractor, achieved the successful acquisition outcome to
which such fees were linked under the contract.
TITLE II--COMPETITION AND TRANSPARENCY
SEC. 201. DATABASE FOR CONTRACTING OFFICERS.
(a) Database.--
(1) In general.--Subject to the authority, direction, and
control of the Director of the Office of Management and Budget,
the Administrator of General Services shall establish and
maintain a database of information regarding integrity and
performance of persons awarded Federal contracts and grants for
use by Federal officials having authority over contracts and
grants.
(2) Persons covered.--The database shall cover any person
awarded a Federal contract or grant if any information
described in paragraph (3) exists with respect to such person.
(3) Information included.--With respect to a person awarded
a Federal contract or grant, the database shall include
information (in the form of a brief description) for at least
the most recent 5-year period regarding--
(A) all Federal contracts and grants awarded to the
person that were terminated in such period due to
default;
(B) all Federal suspensions and debarments of the
person in that period;
(C) all Federal administrative agreements entered
into by the person and the Federal Government in that
period to resolve a suspension or debarment proceeding
and, to the maximum extent practicable, agreements
involving a suspension or debarment proceeding entered
into by the person and a State government in that
period;
(D) all final findings by a Federal official in
that period that the person has been determined not to
be a responsible source under either subparagraph (C)
or (D) of section 4(7) of the Office of Federal
Procurement Policy Act (41 U.S.C. 403(7));
(E) evidence of repeated, pervasive, or significant
violations of the law that may indicate an
unsatisfactory record of integrity and business ethics;
(F) all convictions of, or civil judgments rendered
against, the prospective contractor for--
(i) commission of fraud or a criminal
offense in connection with obtaining,
attempting to obtain, or performing a public
Federal, State, or local government contract or
subcontract;
(ii) violation of Federal or State
antitrust law relating to the submission of
offers; and
(iii) commission of embezzlement, theft,
forgery, bribery, falsification, or obstruction
of records, making a false statement, tax
evasion, or receiving stolen property;
(G) relative to tax, labor, employment,
environmental, antitrust, or consumer protection laws--
(i) all Federal or State felony
convictions;
(ii) all adverse Federal court judgments in
civil cases brought by the United States;
(iii) all adverse decisions by a Federal
administrative law judge, board, or commission
indicating violations of law;
(iv) all Federal or State felony
indictments; and
(v) any other civil judgment rendered
against the prospective contractor;
(H) all administrative agreements or compliance
agreements entered into between an executive agency and
the contractor;
(I) all civil or administrative complains or
similar actions filed by or on behalf of a Federal
agency, board, or commission; and
(J) other information, such as civil or
administrative complaints or similar actions filed by
or on behalf of a Federal agency, board, or commission,
determined by the Director of the Office of Management
and Budget to be relevant.
(4) Requirements relating to information in database.--
(A) Direct input and update.--The Administrator of
General Services shall design and maintain the database
in a manner that allows the appropriate officials of
each Federal agency to directly input and update in the
database information relating to actions it has taken
with regard to contractors or grant recipients.
(B) Timeliness and accuracy.--The Administrator
shall develop policies to require--
(i) the timely and accurate input of
information into the database;
(ii) notification of any covered person
when information relevant to the person is
entered into the database; and
(iii) an opportunity for any covered person
to append comments to information about such
person in the database.
(5) Availability.--
(A) Availability to all executive agencies and
congress.--The Administrator shall make the database
available to all executive agencies and Congress.
(B) Limitation.--This subsection does not require
the public availability of information that is exempt
from public disclosure under section 552(b) of title 5,
United States Code.
(b) Review of Database.--
(1) Requirement to review database.--Prior to the award of
a contract or grant, an official responsible for awarding a
contract or grant shall review the database established under
subsection (a).
(2) Requirement to document present responsibility.--In the
case of a prospective awardee of a contract or grant against
which a judgment or conviction has been rendered more than once
within any 3-year period for the same or similar offences, if
each judgment or conviction is a cause for debarment, the
official responsible for awarding the contract or grant shall
document why the prospective awardee is considered presently
responsible.
(c) Disclosure in Applications.--
(1) Requirement.--Not later than 180 days after the date of
the enactment of this Act, the Federal Acquisition Regulation
shall be amended to require that in applying for any Federal
grant or submitting a proposal or bid for any Federal contract
a person shall disclose in writing information described in
subsection (a)(3).
(2) Covered contracts and grants.--This subsection shall
apply only to contracts and grants in an amount greater than
the simplified acquisition threshold, as defined in section
4(11) of the Office of Federal Procurement Policy Act (41
U.S.C. 401(11)).
(d) Authorization of Appropriations.--There are authorized to be
appropriated to the Administrator of General Services such funds as may
be necessary to establish the database described in subsection (a).
(e) Report to Congress.--
(1) Report required.--Not later than 180 days after the
date of the enactment of this Act, the Administrator of General
Services shall submit to Congress a report.
(2) Contents of report.--The report shall contain the
following:
(A) A list of all databases that include
information about Federal contracting and Federal
grants.
(B) Recommendations for further legislation or
administrative action that the Administrator considers
appropriate to create a centralized, comprehensive
Federal contracting and Federal grant database.
SEC. 202. ENHANCEMENT OF CONTRACTING INFORMATION DISCLOSED ON
USASPENDING.GOV.
The Director of the Office of Management and Budget shall maintain
on the searchable website required under the Federal Funding
Accountability and Transparency Act of 2006 (Public Law 109-282; 31
U.S.C. 6101 note) the following information:
(1) A detailed description of the type and purpose of work
to be performed under each contract included on the website,
unless the inclusion of such information is determined by the
Director not to be in the interest of the United States in the
case of a contract awarded in connection with a national
emergency, a national security situation, or in the national
defense.
(2) Sworn affidavits by procurement managers and political
appointees involved in the award of a contract stating that
they complied with contracting rules regarding full and open
competition, including the restrictions on disclosing and
obtaining contractor bid or proposal information or source
selection information under section 27 of the Office of Federal
Procurement Policy Act (41 U.S.C. 423), and addressing any
conflicts of interest.
(3) Award fees awarded to contractors and justifications
for such award fees.
(4) Contractors performing work under contracts that is
closely associated with inherently governmental functions (as
that term is described in section 7.503 of the Federal
Acquisition Regulation).
(5) The identities of any senior personnel, officers, or
board members of, or senior lobbyists or consultants for,
contractors who serve in a capacity where they provide media
commentary on the performance of an executive agency.
(6) The price range of bids that were competitive with the
winning bid for each contract included on the website,
including the lowest price, median price, and highest price.
(7) The performance range of the top 100 Federal
contractors (according to value of contracts awarded per fiscal
year), including a listing of ratings for unsatisfactory
performance, performance meeting expectations, and performance
exceeding expectations.
(8) For each contractor included on the website, a list of
executive agencies for which the contractor is currently
performing services under a contract.
(9) Any administrative agreements or compliance agreements
entered into between an executive agency and a contractor with
respect to a contract included on the website.
TITLE III--BUILDING A BETTER FEDERAL GOVERNMENT WORKFORCE
SEC. 301. CONTRACTORS AND INHERENTLY GOVERNMENTAL FUNCTIONS.
(a) Department of Defense.--
(1) Report on performance by contractors of certain
functions.--Not later than 120 days after the date of the
enactment of this Act, the Inspector General of the Department
of Defense shall submit to the Secretary of Defense and the
Committees on Armed Services of the Senate and the House of
Representatives a report listing functions of the Department
that are inherently governmental functions or are closely
associated with the performance of inherently governmental
functions and are performed by contractor personnel.
(2) Staffing plan.--Not later than 120 days after the
submission of the report required under subsection (a), the
Secretary of Defense shall submit to the Committees on Armed
Services of the Senate and the House of Representatives a plan
for staffing with Department of Defense personnel the functions
identified in such report.
(3) Incremental staffing requirements.--
(A) One year after inspector general report.--Not
later than one year after the submission of the report
required under subsection (a), the Secretary of Defense
shall--
(i) ensure that--
(I) at least 50 percent of the
functions identified in the report as
inherently governmental functions are
staffed by Department of Defense
personnel;
(II) at least 10 percent of the
functions identified in the report as
closely associated with the performance
of inherently governmental functions
are staffed by Department of Defense
personnel; and
(III) the remainder of the
functions identified in the report as
inherently governmental functions or as
closely associated with the performance
of inherently governmental functions
are individually screened for potential
conflicts of interest involving
contractor personnel; and
(ii) implement a contract oversight plan
within the Department of Defense to mitigate
the risk that functions identified as
inherently governmental functions or as closely
associated with the performance of inherently
governmental functions are performed by
contractor personnel, particularly personnel
who may experience conflicts of interest.
(B) Two years after inspector general report.--Not
later than two years after the submission of the report
required under subsection (a), the Secretary of Defense
shall ensure that--
(i) all functions identified in the report
as inherently governmental functions are
staffed by Department of Defense personnel;
(ii) at least 30 percent of the functions
identified in the report as closely associated
with the performance of inherently governmental
functions are staffed by Department of Defense
personnel; and
(iii) the remainder of the functions
identified in the report as inherently
governmental functions or as closely associated
with the performance of inherently governmental
functions are individually screened for
potential conflicts of interest involving
contractor personnel.
(C) Three years after inspector general report.--
Not later than three years after the submission of the
report required under subsection (a), the Secretary of
Defense shall ensure that at least 50 percent of the
functions identified in the report as closely
associated with the performance of inherently
governmental functions are staffed by Department of
Defense personnel.
(b) Department of Homeland Security.--
(1) Report on performance by contractors of certain
functions.--Not later than 120 days after the date of the
enactment of this Act, the Inspector General of the Department
of Homeland Security shall submit to the Secretary of Homeland
Security and the Committee on Homeland Security and
Governmental Affairs of the Senate and the Committee on
Homeland Security of the House of Representatives a report
listing functions of the Department that are inherently
governmental functions or are closely associated with the
performance of inherently governmental functions and are
performed by contractor personnel.
(2) Staffing plan.--Not later than 120 days after the
submission of the report required under subsection (a), the
Secretary of Homeland Security shall submit to the Committee on
Homeland Security and Governmental Affairs of the Senate and
the Committee on Homeland Security of the House of
Representatives a plan for staffing with Department of Homeland
Security personnel the functions identified in such report.
(3) Incremental staffing requirements.--
(A) One year after inspector general report.--Not
later than one year after the submission of the report
required under subsection (a), the Secretary of
Homeland Security shall--
(i) ensure that--
(I) at least 50 percent of the
functions identified in the report as
inherently governmental functions are
staffed by Department of Homeland
Security personnel;
(II) at least 10 percent of the
functions identified in the report as
closely associated with the performance
of inherently governmental functions
are staffed by Department of Homeland
Security personnel; and
(III) the remainder of the
functions identified in the report as
inherently governmental functions or as
closely associated with the performance
of inherently governmental functions
are individually screened for potential
conflicts of interest involving
contractor personnel; and
(ii) implement a contract oversight plan
within the Department of Homeland Security to
mitigate the risk that functions identified as
inherently governmental functions or as closely
associated with the performance of inherently
governmental functions are performed by
contractor personnel, particularly personnel
who may experience conflicts of interest.
(B) Two years after inspector general report.--Not
later than two years after the submission of the report
required under subsection (a), the Secretary of
Homeland Security shall ensure that--
(i) all functions identified in the report
as inherently governmental functions are
staffed by Department of Homeland Security
personnel;
(ii) at least 30 percent of the functions
identified in the report as closely associated
with the performance of inherently governmental
functions are staffed by Department of Homeland
Security personnel; and
(iii) the remainder of the functions
identified in the report as inherently
governmental functions or as closely associated
with the performance of inherently governmental
functions are individually screened for
potential conflicts of interest involving
contractor personnel.
(C) Three years after inspector general report.--
Not later than three years after the submission of the
report required under subsection (a), the Secretary of
Homeland Security shall ensure that at least 50 percent
of the functions identified in the report as closely
associated with the performance of inherently
governmental functions are staffed by Department of
Homeland Security personnel.
TITLE IV--DISCLOSURE EXCEPTIONS
SEC. 401. EXCEPTIONS TO DISCLOSURE REQUIREMENTS.
Nothing in this Act shall be construed to require the disclosure of
the following information:
(1) Information exempted from disclosure under the Federal
Acquisition Regulation, the Defense Federal Acquisition
Regulation Supplement, Subpart 206.3, and the Agency for
International Development Acquisition Regulations, Subpart
706.3.
(2) Information exempted from disclosure pursuant to--
(A) paragraphs (1) through (7) of section 2304(c)
of title 10, United States Code; or
(B) paragraphs (1) through (7) of section 303(c) of
the Federal Property and Administrative Services Act of
1949 (41 U.S.C. 253(c)(1)-(7)).
(3) Information exempt from disclosure in accordance with
contracting procedures designed to promote procurement
opportunities for minority and women small business owners.
(4) Information exempt from disclosure in accordance with
the exercise of special emergency procurement authority
exercised under section 32A of the Office of Federal
Procurement Policy Act (41 U.S.C. 428a).
(5) Proprietary information.
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