Sec. 812. Extension and revisions to never contract with the enemy
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Section 841 of the Carl Levin and Howard P. Buck McKeon National Defense Authorization Act for Fiscal Year 2015 ( Public Law 113–291 ; 10 U.S.C. 4871 note prec.) is amended— by striking the section heading and inserting ; Threat mitigation in commercial support to operations in subsection (a)— by striking the subsection heading and inserting ; Program established by striking and in consultation with the Secretary of State and all that follows through the period at the end and inserting and the Secretary of State, establish a program to enable combatant commanders to identify and manage risks introduced by covered persons and entities providing commercial support to military operations.
The Secretary of Defense shall publish policy establishing this program with responsibilities for program execution and oversight and procedures for use of available intelligence, security, and law enforcement information to identify threats and employment of a range of strategies, including the covered procurement actions described in this section, to manage risks posed by covered persons and entities that are engaged in covered activities. ; by amending subsection
(b)to read as follows: The combatant commander shall identify covered persons or entities engaged in covered activities through the program established under subsection (a). Upon identification of a covered person or entity, combatant commanders, or their designated deputies, shall notify and provide rationale for such an identification to the Under Secretary of Defense for Acquisition and Sustainment, the Under Secretary of Defense for Intelligence and Security, and the Under Secretary of Defense for Policy. The head of a contracting activity may exercise a covered procurement action on a covered persons or entity. The head of a contracting activity may exercise a covered procurement action only after receiving a notification and recommendation from the Under Secretary of Defense for Acquisition and Sustainment, based on a risk assessment by the identifying combatant commander, that states that— the person or entity identified by the combatant commander meets the criteria for a covered person or entity and was or is actively engaged in one or more covered activities; and less intrusive measures are not reasonably available to manage the risk. ; by amending subsection
(c)to read as follows: Contracting activities shall notify covered persons and entities through covered solicitations and contracts, grants, or cooperative agreements of the following matters: The program established under subsection (a). The authorities established under subsection (b). The responsibilities of covered persons or entities to exercise due diligence to mitigate their engagement in covered activities. Upon exercising a covered procurement action, the head of a contracting activity shall notify the covered person or entity of the action. The covered person or entity shall be permitted the opportunity to challenge the covered procurement action by requesting an administrative review of the action under the procedures of the Department of Defense not later than 30 days after receipt of notice of the action. Full disclosure of information to a covered person or entity justifying an identification made under subsection (b)(1) or a covered procurement action need not be provided when such a disclosure would compromise national security or would pose an unacceptable threat to personnel of the United States or partners and allies. Classified information relied upon to exercise a covered procurement action may not be disclosed to a covered person or entity, or to their representatives, unless a protective order issued by a court of competent jurisdiction established under article I or article III of the Constitution of the United States specifically addresses the conditions under which such classified information may be disclosed. ; by amending subsection
(d)to read as follows: All covered procurement actions shall be reported to the Under Secretary of Defense for Acquisition and Sustainment and reported in the Federal Awardee Performance and Integrity Information System (FAPIIS) or other formal systems or record. Exclusions shall also be reported in the System for Award Management (SAM). ; by amending subsection
(e)to read as follows: The Secretary of Defense, in coordination with the Director of National Intelligence and the Secretary of State, shall, on an annual basis, review the lists of persons and entities having been subject to a covered procurement action under subsection (b)(2) to determine whether or not such persons and entities continue to warrant use of the covered procurement action. ; by amending subsection
(f)to read as follows: The Secretary of Defense, in conjunction with the Secretary of State, may grant a waiver for actions taken under subsection
(b)if it is in the best interest of national security. ; by amending subsection
(g)to read as follows: The authority provided by subsection
(b)to make a determination to use a covered procurement action, in whole or in part, may not be delegated below the level of head of contracting activity, or equivalent official for purposes of grants or cooperative agreements. ; by amending subsection
(h)to read as follows: The Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement shall be revised to implement the provisions of this subtitle. ; in subsection (i)— in paragraph (1)— by striking Director of the Office of Management and Budget and inserting Secretary of Defense ; by striking appropriate committees of Congress and inserting congressional defense committees ; in subparagraph (A)— by striking an executive agency exercised the authority to terminate, void, or restrict a contract, grant, and cooperative agreement pursuant to subsection (c), based on a notification under subsection
(b)and inserting a head of contracting activity exercised a covered procurement action ; in clause
(i)by striking executive agency and inserting head of contracting activity ; in clause (ii), by striking the action taken and inserting exercising the covered procurement action ; in clause (iii), by striking voided or terminated and inserting subject to the covered procurement action ; and in clause (iv)— by striking executive agency in force and inserting Department of Defense has and by striking concerned at the time the contract, grant, or cooperative agreement was terminated or voided and replacing with at the time of exercise of the covered procurement action ; and in subparagraph (B)— by striking an executive agency did not exercise the authority to terminate, void, or restrict a contract, grant, and cooperative agreement pursuant to subsection (c), based on a notification under subsection
(b)and inserting a head of contracting activity did not exercise a covered procurement action following an identification from a combatant commander ; in clause (i), by striking executive agency and inserting head of contracting activity ; and in clause (ii), by inserting covered procurement before action ; and in paragraph (2), by striking Director and inserting Secretary of Defense ; by striking subsection
(j)and
(m)and redesignating subsections (k), (l), and
(n)as subsections (j), (k), and (l), respectively; in subsection (k), as redesignated by paragraph (11), by striking Except as provided in subsection (l), the and inserting The ; and in subsection (l), as so redesignated, by striking December 31, 2025 and inserting December 31, 2033 . Section 842 of the Carl Levin and Howard P. Buck McKeon National Defense Authorization Act for Fiscal Year 2015 is amended by striking subsections
(a)through
(c)and inserting the following: The Secretary of Defense may examine any records of persons or entities that have existing contracts with, or are active recipients of a grant or cooperative agreement from, the Department of Defense, including any subcontractors or subgrantees, to the extent necessary to support the program established under section 841 of this Act. The examination authorized under subsection
(a)may only take place after a written determination is made by the contracting officer, informed by a finding from the combatant commander, stating that this examination will support the program established under such section 841, and less intrusive measures are not reasonably available to manage the risk. . Section 843 of the Carl Levin and Howard P. Buck McKeon National Defense Authorization Act for Fiscal Year 2015 is amended— by striking paragraphs (1), (2), (3), (4), (7), and
(9)and redesignating paragraphs (5), (6), and
(8)as paragraphs (2), (3), and (6); by inserting before paragraph (2), as redesignated by paragraph
(1)of this section, the following new paragraph: The term covered activities means activities where a covered person or entity is— engaging in acts of violence against personnel of the United States or partners and allies; providing financing, logistics, training, or intelligence to a person described in subparagraph (A); engaging in foreign intelligence activities against the United States or partners and allies; engaging in transnational organized crime or criminal activities; or engaging in other activities that present a direct or indirect risk to United States or partner and allied missions and forces. ; in paragraph (2), as so redesignated, by striking with an estimated value in excess of $50,000 that is performed outside the United States, including its territories and possessions, in support and all that follows through the period at the end and inserting that is performed outside the United States, including its territories and possessions. ; by amending paragraph (3), as so redesignated, to read as follows: The term covered person or entity means any person, corporation, company, limited liability company, limited partnership, business trust, business association, or other similar entity outside of the United States or any foreign reporting company in accordance with section 5336(a)(11)(A)(ii) of title 31, United States Code, that is responding to a covered solicitation or performing work on a covered contract, grant, or cooperative agreement. ; and by inserting after paragraph (3), as so redesignated, the following new paragraphs: The term covered procurement action means an action taken by a head of contracting activity to— exclude a person or commercial entity from award with or without an existing contract, grant, or cooperative agreement; terminate an existing contract, grant, or cooperative agreement for default; or void in whole or in part an existing contract, grant, or cooperative agreement. The term covered solicitation means any Department of Defense solicitation for work for which the place of performance is outside of the United States. . The amendments made by this section shall take effect not later than 180 days after the enactment of this Act, and shall apply to covered solicitations issued and covered contracts, grants, or cooperative agreements (as that term is defined in section 843 of the Carl Levin and Howard P. Buck McKeon National Defense Authorization Act for Fiscal Year 2015, as amended by subsection (c)) awarded on or after such date, and to task and delivery orders that have been issued on or after such date pursuant to covered contracts, grants, or cooperative agreements that are awarded before, on, or after such date.
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Sec. 812
Extension and revisions to never contract with the enemy
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