Text: S.526 — 111th Congress (2009-2010)All Information (Except Text)

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Introduced in Senate (03/04/2009)

 
[Congressional Bills 111th Congress]
[From the U.S. Government Printing Office]
[S. 526 Introduced in Senate (IS)]

111th CONGRESS
  1st Session
                                 S. 526

     To provide in personam jurisdiction in civil actions against 
contractors of the United States Government performing contracts abroad 
with respect to serious bodily injuries of members of the Armed Forces, 
 civilian employees of the United States Government, and United States 
 citizen employees of companies performing work for the United States 
  Government in connection with contractor activities, and for other 
                               purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 4, 2009

Mrs. McCaskill introduced the following bill; which was read twice and 
referred to the Committee on Homeland Security and Governmental Affairs

_______________________________________________________________________

                                 A BILL


 
     To provide in personam jurisdiction in civil actions against 
contractors of the United States Government performing contracts abroad 
with respect to serious bodily injuries of members of the Armed Forces, 
 civilian employees of the United States Government, and United States 
 citizen employees of companies performing work for the United States 
  Government in connection with contractor activities, 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 ``Lieutenant Colonel Dominic `Rocky' 
Baragona Justice for American Heroes Harmed by Contractors Act''.

SEC. 2. FINDINGS.

    Congress makes the following findings:
            (1) On May 19, 2003, Lieutenant Colonel Dominic ``Rocky'' 
        Baragona, United States Army, was killed in Safwan, Iraq, when 
        his vehicle was struck by a truck being driven by a driver 
        employed by the Kuwait & Gulf Link Transport Company, a Kuwait 
        company under multiple contracts with the Department of Defense 
        to provide logistics services in support of the United States 
        military in Kuwait and Iraq, after the truck struck a pile of 
        debris, jacknifed, and crossed two lanes of traffic.
            (2) Lieutenant Colonel Baragona, who was born on June 14, 
        1960, and commissioned into the United States Army after 
        graduating from the United States Military Academy in 1982, was 
        serving as a logistician in III Corps Artillery in Iraq at the 
        time of his death, and is now forever at rest in Arlington 
        National Cemetery.
            (3) Lieutenant Colonel Baragona was, at the time of his 
        death, the highest-ranking United States military officer to be 
        killed in Iraq following the initial invasion of Iraq in March 
        2003 and since the liberation of Kuwait by United States 
        forces.
            (4) In November 2007, the United States District Court for 
        the Northern District of Georgia entered a default judgment 
        against Kuwait & Gulf Link Transport Company and ordered that 
        $4,900,000 be paid in damages for the death of Lieutenant 
        Colonel Baragona.
            (5) In the legal proceeding brought against Kuwait & Gulf 
        Link Transport Company in United States district court, Kuwait 
        & Gulf Link Transport Company knowingly chose not to appear to 
        answer for the actions of its employee and similarly acted 
        inconsistently with the conduct of a responsible party when it 
        evaded or refused service of process in the claim even when 
        service of process was issued directly by the court, only 
        appearing in the action after the Department of Defense had 
        issued a ``request for information'' letter, which was a 
        follow-up letter to an Army notice for Kuwait & Gulf Link 
        Transport Company to ``show cause'' why the company should not 
        be debarred for its refusal to accept service of process in the 
        Baragona civil litigation, requesting information regarding the 
        company's intent to either honor the court's final judgment 
        against it or to otherwise respond to the judgment. A failure 
        to respond to the request for information would have 
        jeopardized the company's capacity to continue to perform as a 
        contractor of the United States Government.
            (6) Kuwait & Gulf Link Transport Company has stated that it 
        neither evaded nor refused service of process in the civil 
        litigation, asserting that the initial and multiple attempts at 
        service of process made in accordance with international law 
        via certified international mail courier did not comply with 
        Kuwait law. Service of process was ultimately executed in 
        accordance with Kuwait law via the Kuwait Ministry of Justice. 
        The Federal district court overseeing the case ruled that 
        service of process had been properly executed prior to entering 
        the default judgment against Kuwait & Gulf Link Transport 
        Company. Kuwait & Gulf Link Transport Company has not disputed 
        in court that service of process was properly executed and 
        thereby has consented to the court's determination that service 
        of process in the case was proper.
            (7) Kuwait & Gulf Link Transport Company has since made an 
        appearance in the action only to dispute the court's personal 
        jurisdiction over it and to request the dismissal of the 
        judgment against it and has not contested in court that its 
        negligence was the cause of Lieutenant Colonel Baragona's 
        wrongful death. But for Kuwait & Gulf Link Transport Company's 
        fear of debarment, it may not have entered the action to answer 
        for its negligence.
            (8) The Honorable William S. Duffey, Jr., United States 
        District Judge in the Northern District of Georgia, has 
        described the conduct of Kuwait & Gulf Link Transport Company 
        as ``evasive and disruptive to a significant jurisdictional 
        issue'', has further described the conduct of Kuwait & Gulf 
        Link Transport Company as ``ghastly'', has questioned whether 
        Kuwait & Gulf Link Transport Company ``appreciate[s] the 
        sacrifice of the citizens and the men of our military'', and 
        has further questioned why the company would not compensate the 
        Baragona family when an employee of the company ``apparently by 
        negligence, has caused the death and caused damages to another 
        person'' and when the company ``has the wherewithal to 
        compensate [the] victims of [the] negligence''.
            (9) In March 2009, the Baragona family sought to amicably 
        resolve their claim against Kuwait & Gulf Link Transport 
        Company through court appointed mediation. Kuwait & Gulf Link 
        Transport Company formally declined to join in or consent to 
        the Baragona's request for court appointed mediation.
            (10) Kuwait & Gulf Link Transport Company is a foreign-
        owned contractor of the United States Government whose earnings 
        under United States Government contracts exceed $45,000,000 
        from prime contracts and are reported to exceed $100,000,000 
        from subcontracts.
            (11) In a special advertising section of the New York 
        Times, the Chairman of Kuwait & Gulf Link Holding Company, a 
        separate but related legal entity, described the business of 
        Kuwait & Gulf Link Holding Company with the United States Armed 
        Forces as follows: ``[The] U.S. military is one of our largest 
        customers today. We have been working with [the] U.S. military 
        since 1992. Immediately after [the] liberation of Kuwait, we 
        established our business again, and we started working with 
        them, and have continued now, for over 15 years''.
            (12) Kuwait & Gulf Link Transport Company has asserted that 
        it had insurance for its operations in Iraq at the time of the 
        death of Lieutenant Colonel Baragona, such insurance having 
        been a requirement under its contracts and subcontracts with 
        the Department of Defense. However, it has failed to rely on 
        that insurance to address the wrongful death claim of the 
        Baragona family, which appears inconsistent with its claim of 
        insurance coverage and is unjust to the Baragona family.
            (13) The Government of Kuwait first failed to respond to, 
        and then declined to act on, requests by members of Congress 
        that it instruct Kuwait & Gulf Link Transport Company, its 
        corporate citizen, to conduct itself honorably with respect to 
        the claim of the Baragona family.
            (14) Kuwait & Gulf Link Transport Company, the Kuwait 
        Government, and others should act honorably to deliver justice 
        to the Baragona family and to honor the service and sacrifice 
        of Lieutenant Colonel Dominic Baragona.
            (15) The Baragona family has nobly sought justice in the 
        wrongful death of their son and brother but has faced many 
        obstacles from Kuwait & Gulf Link Transport Company and others 
        in their efforts.
            (16) Members of the Armed Forces, civilian employees of the 
        United States Government, and United States citizen employees 
        of companies performing work for the United States Government, 
        or, in the event of their death, their family members, should 
        be able to seek redress from Federal contractors in a United 
        States Federal court when the member of the Armed Forces, 
        civilian employee, or United States citizen employee 
        experiences serious bodily injury because of the negligent 
        performance by the contractor of its work for the United States 
        Government.

SEC. 3. IN PERSONAM JURISDICTION IN CIVIL SUITS WITH RESPECT TO SERIOUS 
              BODILY INJURIES OF MEMBERS OF THE ARMED FORCES, CIVILIAN 
              EMPLOYEES OF THE UNITED STATES, AND UNITED STATES CITIZEN 
              EMPLOYEES OF COMPANIES PERFORMING WORK FOR THE UNITED 
              STATES AGAINST ENTITIES UNDER UNITED STATES GOVERNMENT 
              CONTRACTS PERFORMED ABROAD.

    (a) In General.--The Director of the Office of Management and 
Budget shall amend the Federal Acquisition Regulation to include in the 
regulation with respect to any contract for work to be performed 
outside the United States that is approved and financed by the United 
States Government, or any executive department, independent 
establishment, or agency thereof, or any subcontract or subordinate 
contract under such a contract, the following:
            (1) A requirement that the contractor consent to in 
        personam jurisdiction over the contractor by the Federal courts 
        of the United States with respect to any suit alleging a 
        serious bodily injury of a member of the Armed Forces, civilian 
        employee of the United States Government, or United States 
        citizen employee of a company performing work for the United 
        States Government, including a suit for negligence against one 
        or more employees of the contractor for which the contractor 
        may be liable under theories of vicarious liability.
            (2) A clause specifying that consent to in personam 
        jurisdiction under paragraph (1) shall not operate to deprive 
        or terminate in personam jurisdiction as described in that 
        paragraph in any other court that otherwise has in personam 
        jurisdiction as described in that paragraph under applicable 
        law.
            (3) A requirement that, where a cause of action in a suit 
        described in paragraph (1) arises from an act or omission 
        occurring outside the United States, in personam jurisdiction 
        in a suit covered by paragraph (1)--
                    (A) may lie either--
                            (i) in the district court of the United 
                        States of the legal residence of the injured 
                        person, deceased, or heirs of the deceased, or 
                        in the place of the estate established for the 
                        deceased; or
                            (ii) in the district court of the United 
                        States of the command issuing the contract; or
                    (B) if in personam jurisdiction cannot be 
                established in a district court of the United States 
                under subparagraph (A), shall lie in the United States 
                District Court for the District of Columbia.
            (4) In the case of a contract covered by this section with 
        a value of $5,000,000 or more and awarded to a contractor that 
        does not maintain an office in the United States, a requirement 
        that the contractor designate an agent located in the United 
        States for service of process in any suit described in 
        paragraph (1).
            (5) A requirement that--
                    (A) any suit described in paragraph (1) shall be 
                analyzed in accordance with the substantive laws of the 
                United States; and
                    (B) if pursuant to such requirement the law 
                applicable to such suit is the law of the location 
                where the cause of such suit occurred and the location 
                is designated as a hazardous duty zone by the 
                Department of Defense, the tort law of the State in 
                which such suit is brought shall be the law applicable 
                to such case rather than the law of the location where 
                the cause of such suit occurred.
    (b) Serious Bodily Injury Defined.--In subsection (a), the term 
``serious bodily injury'' means bodily injury which involves--
            (1) death or a substantial risk of death;
            (2) extreme physical pain;
            (3) protracted and obvious disfigurement; or
            (4) protracted loss or impairment of the function of a 
        bodily member, organ, or mental faculty.
    (c) Effective Date.--The amendments to the Federal Acquisition 
Regulation made pursuant to subsection (a) shall take effect on such 
date as the Director shall specify, but not later than 90 days after 
the date of the enactment of this Act.
    (d) Applicability.--
            (1) In general.--The amendments to the Federal Acquisition 
        Regulation made pursuant to subsection (a) shall apply with 
        respect to any contract covered by that subsection that is 
        entered into on or after the effective date of such amendments.
            (2) Prospective applicability under certain current 
        contracts.--
                    (A) Indefinite delivery, indefinite quantity 
                contracts.--In the case of an indefinite delivery, 
                indefinite quantity contract in effect as of the 
                effective date of the amendments to the Federal 
                Acquisition Regulation made pursuant to subsection (a), 
                the amendments to the Federal Acquisition Regulation 
                made pursuant to subsection (a) shall apply to any task 
                order under such contract, or any subcontract of such 
                contract, that is made on or after the effective date 
                of such amendments.
                    (B) Modifications of current contracts.--In the 
                case of any contract or subcontract in effect as of the 
                effective date of the amendments to the Federal 
                Acquisition Regulation made pursuant to subsection (a) 
                that is modified after the effective date of such 
                amendments, the amendments to the Federal Acquisition 
                Regulation made pursuant to subsection (a) shall apply 
                with respect to any modification of such contract or 
                subcontract after the effective date of such 
                amendments.
            (3) Certain other contracts.--In any civil action commenced 
        during the period beginning on September 11, 2001, and ending 
        on the date of the enactment of this Act to which the 
        requirement in subsection (a)(1) would have applied if such 
        subsection had been in effect during such period, the 
        contractor shall consent to the jurisdiction of the Federal 
        courts of the United States in such action as a condition of--
                    (A) entering into any contract with the United 
                States Government on or after the date of the enactment 
                of this Act; or
                    (B) receiving any payment from the United States 
                Government for performing any activity under a contract 
                with the United States Government on or after the date 
                of the enactment of this Act.
            (4) Additional definition of contractor.--For purposes of 
        paragraph (3), the term ``contractor''--
                    (A) shall have the meaning given that term in 
                section 6(1); and
                    (B) shall also include any subsidiary, parent 
                company, or successor entity of a contractor formed to 
                act as a successor in interest of a contractor for 
                United States Government contracting purposes.

SEC. 4. IN PERSONAM JURISDICTION FOR CIVIL OR CRIMINAL SUITS BROUGHT BY 
              THE UNITED STATES GOVERNMENT ALLEGING WRONGDOING UNDER 
              UNITED STATES GOVERNMENT CONTRACTS PERFORMED ABROAD.

    (a) In General.--The Director of the Office of Management and 
Budget shall amend the Federal Acquisition Regulation to include in the 
regulation with respect to any contract for work to be performed 
outside the United States that is approved and financed by the United 
States Government, or any executive department, independent 
establishment, or agency thereof, or any subordinate contract under 
such a contract, the following:
            (1) A requirement that the contractor consent to in 
        personam jurisdiction over the contractor by the Federal courts 
        of the United States with respect to any civil or criminal suit 
        brought by the United States Government alleging wrongdoing 
        associated with the performance of such a contract.
            (2) A clause specifying that consent to in personam 
        jurisdiction under paragraph (1) shall not operate to deprive 
        or terminate in personam jurisdiction as described in that 
        paragraph in any other court that otherwise has in personam 
        jurisdiction as described in that paragraph under applicable 
        law.
            (3) A requirement that, where a cause of action in a suit 
        described in paragraph (1) arises from an act or omission 
        occurring outside the United States, in personam jurisdiction 
        in a suit covered by paragraph (1) shall lie in the United 
        States District Court for the District of Columbia if it cannot 
        be established in another Federal court.
            (4) In the case of a contract covered by this section with 
        a value of $5,000,000 or more and awarded to a contractor that 
        does not maintain an office in the United States, a requirement 
        that the contractor designate an agent located in the United 
        States for service of process in any suit described in 
        paragraph (1).
    (b) Effective Date.--The amendments to the Federal Acquisition 
Regulation made pursuant to subsection (a) shall take effect on such 
date as the Director shall specify, but not later than 90 days after 
the date of the enactment of this Act.
    (c) Applicability.--
            (1) In general.--The amendments to the Federal Acquisition 
        Regulation made pursuant to subsection (a) shall apply with 
        respect to any contract covered by that subsection that is 
        entered into on or after the effective date of such amendments.
            (2) Prospective applicability under certain current 
        contracts.--
                    (A) Indefinite delivery, indefinite quantity 
                contracts.--In the case of an indefinite delivery, 
                indefinite quantity contract in effect as of the 
                effective date of the amendments to the Federal 
                Acquisition Regulation made pursuant to subsection (a), 
                the amendments to the Federal Acquisition Regulation 
                made pursuant to subsection (a) shall apply to any task 
                order under such contract, or any subcontract of such 
                contract, that is made on or after the effective date 
                of such amendments.
                    (B) Modifications of current contracts.--In the 
                case of any contract or subcontract in effect as of the 
                effective date of the amendments to the Federal 
                Acquisition Regulation made pursuant to subsection (a) 
                that is modified after the effective date of such 
                amendments, the amendments to the Federal Acquisition 
                Regulation made pursuant to subsection (a) shall apply 
                with respect to any modification of such contract or 
                subcontract after the effective date of such 
                amendments.
            (3) Certain other contracts.--In any civil or criminal 
        action commenced during the period beginning on September 11, 
        2001, and ending on the date of the enactment of this Act to 
        which the requirement in subsection (a)(1) would have applied 
        if such subsection had been in effect during such period, the 
        contractor shall consent to the jurisdiction of the Federal 
        courts of the United States in such action as a condition of--
                    (A) entering into any contract with the United 
                States Government on or after the date of the enactment 
                of this Act; or
                    (B) receiving any payment from the United States 
                Government for performing any activity under a contract 
                with the United States Government on or after the date 
                of the enactment of this Act.
            (4) Additional definition of contractor.--For purposes of 
        paragraph (3), the term ``contractor''--
                    (A) shall have the meaning given that term in 
                section 6(1); and
                    (B) shall also include any subsidiary, parent 
                company, or successor entity of a contractor formed to 
                act as a successor in interest of a contractor for 
                United States Government contracting purposes.

SEC. 5. DEBARMENT OR SUSPENSION OF UNITED STATES GOVERNMENT CONTRACTORS 
              FOR EVASION OF PROCESS OR FAILURE TO APPEAR IN ACTIONS IN 
              CONNECTION WITH GOVERNMENT CONTRACTS.

    (a) In General.--The Director of the Office of Management and 
Budget shall amend the Federal Acquisition Regulation to provide that a 
contractor of the United States Government, whether a United States 
company or a foreign company, may be debarred or suspended from 
contracting with the United States Government under circumstances as 
follows:
            (1) If the contractor evades service of process in any suit 
        brought against the contractor by the United States Government 
        or a citizen or national of the United States in connection 
        with the contractor's performance of a contract with the United 
        States Government.
            (2) If the contractor refuses or fails to appear before a 
        Federal court of the United States in a matter brought against 
        the contractor by the United States Government or a citizen or 
        national of the United States in connection with the 
        contractor's performance of a contract with the United States 
        Government.
    (b) Applicability.--The amendment to the Federal Acquisition 
Regulation made pursuant to subsection (a) shall apply to any action of 
a contractor covered by such amendment that occurs on or after the 
effective date of such amendment.

SEC. 6. DEFINITIONS.

    In this Act:
            (1) Contractor.--The term ``contractor'', with respect to a 
        contract, includes the contractor under the contract, any 
        subcontractor under the contract, any subordinate contractor 
        under the contract, and any employees thereof performing work 
        under or in connection with the contract.
            (2) United states.--The term ``United States'', in a 
        geographic sense, means the several States and the District of 
        Columbia. The term does not include any military installation 
        or facility located outside the United States, as so defined.
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