Honest Leadership and Accountability in Contracting Act of 2006

109th CONGRESS
2d Session

S. 2361

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, and for other purposes.

IN THE SENATE OF THE UNITED STATES

March 2, 2006

Mr. DORGAN (for himself, Mr. BINGAMAN, Mrs. BOXER, Mr. CARPER, Mrs. CLINTON, Mr. DAYTON, Mr. DURBIN, Mr. FEINGOLD, Mrs. FEINSTEIN, Mr. HARKIN, Mr. JOHNSON, Mr. KENNEDY, Mr. KERRY, Ms. LANDRIEU, Mr. LAUTENBERG, Mr. LEAHY, Mr. MENENDEZ, Ms. MIKULSKI, Mr. OBAMA, Mr. PRYOR, Mr. REID, Mr. ROCKEFELLER, Mr. SALAZAR, Ms. STABENOW, Mr. WYDEN, Mr. KOHL, Mr. SCHUMER, and Mr. NELSON of Florida) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs

A BILL

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

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

TITLE I--ELIMINATION OF FRAUD AND ABUSE

SEC. 101. 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. 102. SUSPENSION AND DEBARMENT OF UNETHICAL CONTRACTORS.

(a) In General- Not later than 90 days after the date of 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. 103. 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--

(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.

TITLE II--CONTRACT MATTERS

Subtitle A--Competition in Contracting

SEC. 201. 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:

`(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. 202. COMPETITION IN MULTIPLE AWARD CONTRACTS.

(a) Regulations Required- Not later than 180 days after the date of the enactment of this section, 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.

(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'.

(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'.

Subtitle B--Contract Personnel Matters

SEC. 211. 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.

(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;

(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. 212. 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.'.

TITLE III--OTHER PERSONNEL MATTERS

SEC. 301. 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. 302. 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 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 would 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

`(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 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 77 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.

END