Preventing Personal Conflicts of Interest in Federal Acquisition Act
This bill addresses conflicts of interest in federal acquisition.
Specifically, the bill directs the Federal Acquisition Regulatory Council to (1) expand the scope of rules to prevent personal conflicts of interest beyond the limited types of functions or services that are currently addressed in a specified part of the Federal Acquisition Regulation (FAR), and (2) revise the FAR to address the functions and services that give rise to heightened concerns for personal conflicts of interest.
The bill similarly expands the scope of the Office of Federal Procurement Policy's standard policy to prevent personal conflicts of interest by contractor employees performing relevant acquisition functions for or on behalf of a federal agency or department.
The bill prohibits contractors, contractor employees, and subcontractors and their employees from providing services supporting the regulatory, policymaking, or adjudicative functions of an agency at the same time that the contractor, employees, or subcontractor provides services to an entity regulated by, or having non-routine business before, the agency, except where there is a compelling reason, as documented in writing.
The Department of Justice may bring a civil action in U.S. district court for violations of this bill.
[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 8325 Introduced in House (IH)]
<DOC>
117th CONGRESS
2d Session
H. R. 8325
To amend title 41, United States Code, to prevent personal conflicts of
interest in Federal acquisition, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
July 11, 2022
Mrs. Carolyn B. Maloney of New York introduced the following bill;
which was referred to the Committee on Oversight and Reform
_______________________________________________________________________
A BILL
To amend title 41, United States Code, to prevent personal conflicts of
interest in Federal acquisition, 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.
This Act may be cited as the ``Preventing Personal Conflicts of
Interest in Federal Acquisition Act''.
SEC. 2. PREVENTING PERSONAL CONFLICTS OF INTEREST IN FEDERAL
ACQUISITION.
(a) Federal Acquisition Regulation Revisions.--Not later than 12
months after the date of the enactment of this Act, the Federal
Acquisition Regulatory Council shall--
(1) expand the scope of rules to prevent personal conflicts
of interest beyond the limited types of functions or services
that are currently addressed in subpart 3.11 of the Federal
Acquisition Regulation, by including coverage for--
(A) consulting, analytical, or advisory services
supporting the primary missions, or services supporting
the regulatory, policymaking, and adjudicative
functions, of an Executive agency;
(B) functions closely associated with inherently
governmental functions, as defined in the Federal
Acquisition Regulation, that give rise to heightened
concerns for personal conflicts of interest; and
(C) other functions or services that give rise to
heightened concerns for personal conflicts of interest,
as deemed appropriate; and
(2) revise the Federal Acquisition Regulation to address
the functions and services identified under paragraph (1),
including by providing and updating--
(A) the definitions, policies, and procedures
related to preventing potential personal conflicts of
interest;
(B) solicitation provisions and contract clauses
for Executive agencies to use in solicitations and
contracts, where appropriate, to prevent personal
conflicts of interest;
(C) the responsibilities of employers to screen
their employees for personal conflicts of interest, to
inform their employees of their legal duties related to
preventing personal conflicts of interest and the
appearance of personal conflicts of interest, and to
seek compliance from their employees of such procedures
and requirements;
(D) the restrictions on a contractor's employees
disclosing, or using for personal gain, confidential
information obtained in connection with performing the
contract; and
(E) the duties and procedures of reporting apparent
violations of rules governing personal conflicts of
interest, including to the agency's Inspector General,
where appropriate.
SEC. 3. ETHICS SAFEGUARDS RELATED TO CONTRACTOR CONFLICTS OF INTEREST.
Section 2303 of title 41, United States Code, is amended to read as
follows:
``Sec. 2303. Ethics safeguards related to contractor conflicts of
interest
``(a) Policy on Personal Conflicts of Interest by Contractor
Employees.--
``(1) Development and issuance of policy.--The
Administrator shall develop and issue a standard policy to
prevent personal conflicts of interest by contractor employees
performing the following functions for or on behalf of an
Executive agency or department:
``(A) Relevant acquisition functions (including the
development, award, and administration of Federal
Government contracts).
``(B) Consulting, analytical, and advisory services
supporting the primary missions, or services supporting
the regulatory, policymaking, and adjudicative
functions, of an Executive agency.
``(C) Other functions or services provided by
contractors that present heightened risks of personal
conflicts of interest, as determined by the
Administrator.
``(2) Elements of policy.--The policy shall--
``(A) define `personal conflict of interest' as it
relates to contractor employees performing covered
functions; and
``(B) require each contractor whose employees
perform relevant acquisition functions to--
``(i) identify and prevent personal
conflicts of interest for the employees;
``(ii) prohibit contractor employees who
have access to non-public government
information obtained while performing covered
functions from using the information for
personal gain;
``(iii) report any personal conflict-of-
interest violation by an employee to the
applicable contracting officer or contracting
officer's representative as soon as it is
identified;
``(iv) maintain effective oversight to
verify compliance with personal conflict-of-
interest safeguards;
``(v) have procedures in place to screen
for potential conflicts of interest for all
employees performing covered functions; and
``(vi) take appropriate disciplinary action
in the case of employees who fail to comply
with policies established pursuant to this
section.
``(3) Contract clause.--
``(A) Contents.--The Administrator shall develop a
personal conflicts-of-interest clause or a set of
clauses for inclusion in solicitations and contracts
(and task or delivery orders) for the performance of
covered functions that sets forth--
``(i) the personal conflicts-of-interest
policy developed under this subsection; and
``(ii) the contractor's responsibilities
under the policy.
``(B) Effective date.--Updates to the clause or
clauses identified in subparagraph (A) shall take
effect one year after enactment, and shall apply to--
``(i) contracts entered into on or after
that effective date; and
``(ii) task or delivery orders awarded on
or after that effective date, regardless of
whether the contracts pursuant to which the
task or delivery orders are awarded are entered
before, on, or after the effective date.
``(4) Partial applicability.-- If only a portion of a
contract is for the performance of covered functions, then this
subsection applies only to that portion of the contract.
``(b) Best Practices.--The Administrator shall, in consultation
with the Director of the Office of Government Ethics, develop and
maintain a repository of best practices relating to the prevention and
mitigation of organizational and personal conflicts of interest in
Federal contracting.
``(c) Definitions.--In this section:
``(1) Covered function.--The term `covered function' means
a function described under subsection (a)(1).
``(2) Relevant acquisition function.--The term `relevant
acquisition function' means an acquisition function closely
associated with inherently governmental functions.''.
SEC. 4. PROHIBITION AGAINST CERTAIN CONFLICTS OF INTEREST.
Chapter 23 of title 41, United States Code, is amended by adding at
the end the following:
``Sec. 2314. Prohibition against certain conflicts of interest
``(a) Prohibition Against Certain Conflicts of Interest.--
``(1) Prohibition.--Contractors, contractor employees, and
subcontractors and their employees shall not provide services
supporting the regulatory, policymaking, or adjudicative
functions of an Executive agency at the same time that the
contractor, employees, or subcontractor provides services to an
entity regulated by, or having non-routine business before, the
agency.
``(2) Exception.--
``(A) In general.--The head of the executive agency
may issue an exception to the requirement under
paragraph (1) with respect to a contractor, employee,
or subcontractor only if the head of the agency
determines in writing there is a compelling reason to
award a contract, or continue performance of a
contract, with such exception.
``(B) Determination.--In determining whether there
is a compelling reason under subparagraph (A), the head
of an Executive agency shall consider--
``(i) the nature and extent of the risks
associated with the conflict;
``(ii) the essential need of the government
to receive the services, notwithstanding such a
conflict, and direct harm to the government of
not receiving the services from the entity or
person; and
``(iii) the ability of the contractor,
employee, or subcontractor to mitigate the
conflict.
``(C) Non-delegation of authority.--The head of the
Executive agency shall not delegate the authority to
issue an exception under this subparagraph below the
level of the head of a contracting activity.
``(3) Public notice of issue of exception.--
``(A) Public availability.--A notice of an
exception issued pursuant to paragraph (2) shall be
made publicly available in electronic format through
the Government-wide point of entry, as defined in the
Federal Acquisition Regulation, at the time of contract
award, or at the time that an Executive agency decides
to proceed with contract performance, if arising after
award.
``(B) Contents of notification.--The notice shall
include, at a minimum--
``(i) the contractor, employee, or
subcontractor receiving the exception, although
reasonable redactions should be made to the
public version of the notice to protect the
privacy of individual employees of a contractor
or subcontractor;
``(ii) identification of the contract;
``(iii) a description of the nature of the
conflict;
``(iv) the rationale for applying the
exception; and
``(v) the measures that will be taken to
mitigate or avoid the conflict.
``(b) Disclosures and Limitations for Consultants.--Contractors
providing consulting, analytical, or advisory services in support of
the primary missions, or the regulatory, policymaking, or adjudicative
functions, of an Executive agency shall--
``(1) disclose, in sufficient detail, specific work
performed in the last five years on behalf of any entities
regulated by, or having non-routine business before, the
Executive agency; and
``(2) during the term of the contract, refrain from
entering into consulting or other contractual arrangements with
any entity to perform specific work that may reasonably create
a conflict of interest, without receiving the written approval
of the contracting officer before the execution of the
contractual arrangement.
``(c) Civil Penalties.--
``(1) Civil action.--The Attorney General may bring a civil
action in an appropriate district court of the United States
against a person who knowingly violates the prohibitions under
subsection (a) or fails to comply with the requirements of
subsection (b).
``(2) Penalty.--On proof of that conduct by a preponderance
of the evidence--
``(A) an individual shall be liable to the Federal
Government for a civil penalty of not more than $50,000
for each violation plus the amount of compensation that
the individual received under the corresponding
Government contract; and
``(B) an organization shall be liable to the
Federal Government for a civil penalty of not more than
$500,000 for each violation plus the amount of
compensation that the organization received under the
corresponding Government contract.
``(3) Statute of limitation.--A civil action under
paragraph (1) shall be brought within 6 years after the later
of the date on which--
``(A) the prohibited conduct establishing the cause
of action occurred; or
``(B) the Federal Government first knew or should
reasonably have known that the prohibited conduct had
occurred.
``(4) Rules of construction.--The civil penalties set forth
in this subsection are not exclusive and do not limit the
potential for a person that violates the prohibitions under
subsection (a) or fails to comply with the requirements of
subsection (b), to be found liable under the False Claims Act,
section 3729 through section 3733 of title 31, or other
applicable civil or criminal penalties, as prescribed by law.
``(d) Administrative Actions.--
``(1) Types of action that an executive agency may take.--
An Executive agency that receives information that a contractor
or a person has failed to comply with a legal requirement to
disclose an organizational conflict of interest or a personal
conflict of interest, as defined in the Federal Acquisition
Regulation, or has violated the prohibitions under subsection
(a) or fails to comply with the requirements of subsection (b),
shall consider taking one or more of the following actions, as
appropriate:
``(A) Canceling the Executive agency procurement or
disqualify a contractor from consideration, if a
contract has not yet been awarded.
``(B) Terminating a contract with respect to
which--
``(i) the contractor or someone acting for
the contractor has been held liable for an
offense punishable under subsection (a); or
``(ii) the contracting officer determines
that a person or contractor failed to disclose
a material organizational or personal conflict
of interest.
``(C) Initiating a suspension or debarment
proceeding for the protection of the Federal Government
in accordance with procedures in the Federal
Acquisition Regulation.
``(2) Amount government entitled to recover.--When a
Federal agency terminates a contract pursuant to paragraph
(1)(B), the Federal Government is entitled to recover, in
addition to any penalty prescribed by law, the amount expended
under the contract.
``(3) Present responsibility affected by conduct.--For
purposes of a suspension or debarment proceeding initiated
pursuant to paragraph (1)(C), engaging in conduct constituting
an offense under this section affects the present
responsibility of a Federal Government contractor or
subcontractor.''.
<all>
Introduced in House
Introduced in House
Referred to the House Committee on Oversight and Reform.
Committee Consideration and Mark-up Session Held.
Committee Consideration and Mark-up Session Held.
Ordered to be Reported in the Nature of a Substitute (Amended) by the Yeas and Nays: 24 - 18.
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