Sec. 3. Prohibition on criminal history inquiries by contractors prior to conditional offer

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Division C of subtitle I of title 41, United States Code, is amended by adding at the end the following new section: Except as provided in paragraphs

(2)and (3), an executive agency— may not require that an individual or sole proprietor who submits a bid for a contract to disclose criminal history record information regarding that individual or sole proprietor before determining the apparent awardee; and shall require as a condition of receiving a Federal contract and receiving payments under such contract that the contractor may not verbally or through written form request the disclosure of criminal history record information regarding an applicant for a position related to work under such contract before the contractor extends a conditional offer to the applicant. The prohibition under paragraph

(1)does not apply with respect to a contract if consideration of criminal history record information prior to a conditional offer with respect to the position is otherwise required by law. The prohibition under paragraph

(1)does not apply with respect to a contract that requires an individual hired under the contract to access classified information or to have sensitive law enforcement or national security duties. The Administrator of General Services shall establish and publish procedures under which an applicant for a position with a Federal contractor may submit to the Administrator a complaint, or any other information, relating to compliance by the contractor with subsection (a)(1)(B). If the head of an executive agency determines that a contractor has violated subsection (a)(1)(B), such head shall— notify the contractor; provide 30 days after such notification for the contractor to appeal the determination; and issue a written warning to the contractor that includes a description of the violation and the additional penalties that may apply for subsequent violations. If the head of an executive agency determines that a contractor that was subject to paragraph

(1)has committed a subsequent violation of subsection (a)(1)(B), such head shall notify the contractor, shall provide 30 days after such notification for the contractor to appeal the determination, and, in consultation with the relevant Federal agencies, may take actions, depending on the severity of the infraction and the contractor’s history of violations, including— providing written guidance to the contractor that the contractor's eligibility for contracts requires compliance with this section; requiring that the contractor respond within 30 days affirming that the contractor is taking steps to comply with this section; suspending payment under the contract for which the applicant was being considered; terminating the contract under which the applicant was being considered; and referring the contractor to the suspension and debarment office of the agency for consideration of actions pursuant to section 9.4 of the Federal Acquisition Regulation. In this section: The term conditional offer means an offer of employment for a position related to work under a contract that is conditioned upon the results of a criminal history inquiry. The term criminal history record information has the meaning given that term in section 9201 of title 5. . The table of sections for division C of subtitle I of title 41, United States Code, is amended by inserting after the item relating to section 4712 the following new item: 4713. Prohibition on criminal history inquiries by contractors prior to conditional offer. . Section 4713(a) of title 41, United States Code, as added by paragraph (1), shall apply with respect to contracts awarded pursuant to solicitations issued after the effective date described in section 2(b)(2). Chapter 137 of title 10, United States Code, is amended by adding at the end the following new section: Except as provided in paragraphs

(2)and (3), the head of an agency— may not require that an individual or sole proprietor who submits a bid for a contract to disclose criminal history record information regarding that individual or sole proprietor before determining the apparent awardee; and shall require as a condition of receiving a Federal contract and receiving payments under such contract that the contractor may not verbally or through written form request the disclosure of criminal history record information regarding an applicant for a position related to work under such contract before such contractor extends a conditional offer to the applicant. The prohibition under paragraph

(1)does not apply with respect to a contract that requires an individual hired under the contract to access classified information or to have sensitive law enforcement or national security duties. The Secretary of Defense shall establish and publish procedures under which an applicant for a position with a Department of Defense contractor may submit a complaint, or any other information, relating to compliance by the contractor with subsection (a)(1)(B). If the Secretary of Defense determines that a contractor has violated subsection (a)(1)(B), the Secretary shall— notify the contractor; provide 30 days after such notification for the contractor to appeal the determination; and issue a written warning to the contractor that includes a description of the violation and the additional penalties that may apply for subsequent violations. If the Secretary of Defense determines that a contractor that was subject to paragraph

(1)has committed a subsequent violation of subsection (a)(1)(B), the Secretary shall notify the contractor, shall provide 30 days after such notification for the contractor to appeal the determination, and, in consultation with the relevant Federal agencies, may take actions, depending on the severity of the infraction and the contractor’s history of violations, including— providing written guidance to the contractor that the contractor's eligibility for contracts requires compliance with this section; requiring that the contractor respond within 30 days affirming that the contractor is taking steps to comply with this section; suspending payment under the contract for which the applicant was being considered; terminating the contract under which the applicant was being considered; and referring the contractor to the suspension and debarment office of the agency for consideration of actions pursuant to section 9.4 of the Federal Acquisition Regulation. In this section: The term conditional offer means an offer of employment for a position related to work under a contract that is conditioned upon the results of a criminal history inquiry. The term criminal history record information has the meaning given that term in section 9201 of title 5. . Section 2338(a) of title 10, United States Code, as added by paragraph (1), shall apply with respect to contracts awarded pursuant to solicitations issued after the effective date described in section 2(b)(2). The table of sections for chapter 137 of title 10, United States Code, is amended by inserting after the item relating to section 2337 the following new item: 2338. Prohibition on criminal history inquiries by contractors prior to conditional offer. . Not later than 18 months after the date of enactment of this Act, the Federal Acquisition Regulatory Council shall revise the Federal Acquisition Regulation to implement section 4713 of title 41, United States Code, and section 2338 of title 10, United States Code, as added by this section. The Federal Acquisition Regulatory Council shall revise the Federal Acquisition Regulation under paragraph

(1)in conformity with the regulations issued by the Director of the Office of Personnel Management under section 2(b)(1) to the maximum extent practicable. The Council shall include together with such revision an explanation of any substantive modification of the Office of Personnel Management regulations, including an explanation of how such modification will more effectively implement the rights and protections under this section.