117 HR 8325 IH: Preventing Personal Conflicts of Interest in Federal Acquisition Act
U.S. House of Representatives
2022-07-11
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I
117th CONGRESS
2d Session
H. R. 8325
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.
1.

Short title
This Act may be cited as the “Preventing Personal Conflicts of Interest in Federal Acquisition Act”.
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.
3.

Ethics safeguards related to contractor conflicts of interest
Section 2303 of title 41, United States Code, is amended to read as follows:
“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.”.
4.

Prohibition against certain conflicts of interest
Chapter 23 of title 41, United States Code, is amended by adding at the end the following:
“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.”.