Text of Amendments to H.R. 4350, October 26, 2021 — Congressional Record, Senate
Summary
This is S7381 of the Congressional Record, Senate, October 26, 2021, with interleaved columns of amendment text intended to be proposed to H.R. 4350, the defense authorization bill. The printed provisions include requirements for the Secretary of Defense on guidance for mitigating defense supply chain risks, progress and final reports on a framework, and definitions such as high-risk subcontractor and major end item. They also include a report on the humanitarian effects of sanctions, covering the civilian population's access to food, water, and COVID-19 aid, and whistleblower protections for individuals who disclose gross mismanagement or waste related to covered funds.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
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“Text of Amendments to H.R. 4350, October 26, 2021 — Congressional Record, Senate.”
Original at www.govinfo.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/crec-crec-2021-10-26-crec-2021-10-26-pt1-pgs7381-2-5ada29abb7/
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October 26, 2021 CONGRESSIONAL RECORD — SENATE S7381
(d) GUIDANCE.—Not later than 180 days (A) the ability of the civilian population to prejudiced by any action or lack of action, or
after the framework required under sub- access water, food, sanitation, and public otherwise discriminated against for dis-
section (a) is established, and regularly health services, including all humanitarian closing, being perceived as disclosing, or pre-
thereafter, the Secretary of Defense shall aid and supplies related to the prevention, paring to disclose (including assisting in dis-
issue guidance on mitigating risks to the de- diagnosis, and treatment of COVID–19; closing, being perceived as assisting in dis-
fense supply chain. (B) the changes to the general mortality closing, and including a disclosure made in
(e) REPORTS.— rate, maternal mortality rate, life expect- the ordinary course of job duties) to a person
(1) PROGRESS REPORT.—Not later than 180 ancy, and literacy rate; or body described in paragraph (2) informa-
days after the date of the enactment of this (C) the extent to which there is an increase tion that the protected individual reasonably
Act, the Secretary of Defense shall submit to in refugees or migration to or from the coun- believes is evidence of—
the congressional defense committees a re- try or an increase in internally displaced ‘‘(A)(i) gross mismanagement of a Depart-
port on the progress of establishing the people in the country; ment of Defense contract, subcontract,
framework as required under subsection (a). (D) the degree of compliance and non-com- grant, or subgrant relating to covered funds;
(2) FINAL REPORT.—Not later than one year pliance of the government or non-state actor ‘‘(ii) a gross waste of Department funds or
after the date of the enactment of this Act, with international humanitarian assistance covered funds;
the Secretary of Defense shall submit to the efforts; and ‘‘(iii) an abuse of authority related to a De-
congressional defense committees a report (E) the licensing of transactions to allow partment contract or grant or the distribu-
describing the framework established under access to essential goods and services to vul- tion, implementation, or use of covered
subsection (a) and the organizational struc- nerable populations, including— funds, including conflict of interest or parti-
ture to manage and oversee the framework. (i) the number of licenses applied for, ap- ality;
(f) DEFINITIONS.—In this section: proved, or denied; ‘‘(iv) any violation of any statute, rule, or
(1) COVERED APPLICATION.—The term ‘‘cov- (ii) in cases of license applications that regulation related to a Department of De-
ered application’’ means a software-as-a- were denied, the reasons why such applica- fense contract, subcontract (including the
service application that uses decision tion were denied; and competition for or negotiation of a contract
science, commercial data, and machine (iii) the average time to receive a decision; or subcontract), grant, or subgrant, awarded
learning techniques. and or issued relating to covered funds; and
(2) DEFENSE AGENCY; MILITARY DEPART- ‘‘(v) conduct that violates, obstructs, or
(2) a description of the purpose of sanctions
MENT.—The terms ‘‘Defense Agency’’ and undermines any law, rule, or regulation re-
imposed on each such government and non-
‘‘military department’’ have the meanings lated to any Federal contract (including the
state actor and the required legal or political
given such terms in section 101 of title 10, competition for or negotiation of a contract)
authority, including—
United States Code. or grant, including any statute, rule, or reg-
(A) an assessment of the role of United
(3) HIGH-RISK SUBCONTRACTORS.—The term ulation with respect to any coronavirus pan-
States national security;
‘‘high-risk subcontractor’’ means a subcon- demic-related program, project, or activity;
(B) an assessment of whether the stated
tractor at any tier that supplies major end ‘‘(B) refusing to obey an order that the pro-
foreign policy goals of the sanctions are
items for the Department of Defense. tected individual reasonably believes would
being met;
(4) MAJOR END ITEM.—The term ‘‘major end require that individual to violate a statute,
(C) the degree of international support or rule, or regulation with respect to any cov-
item’’ means an item subject to a unique opposition to the sanctions; and
item-level traceability requirement at any ered funds, including any coronavirus pan-
(D) an assessment of the effect of such demic-related program, project, or activity;
time in the life cycle of such item under De- sanctions on United States businesses, con- ‘‘(C) evidencing gross mismanagement of a
partment of Defense Instruction 8320.04, ti- sumers, and financial institutions. National Aeronautics and Space Administra-
tled ‘‘Item Unique Identification (IUID) (c) FORM.—The report required by sub- tion contract, grant, subcontract, or
Standards for Tangible Personal Property’’ section (a) shall be submitted in unclassified subgrant, a gross waste of Administration
and dated September 3, 2015, or any successor form, but may contain a classified annex. funds, an abuse of authority relating to an
instruction. The unclassified portion of the report shall Administration contract or grant, or a viola-
be published on a publicly available internet tion of law, rule, or regulation related to an
SA 3898. Ms. WARREN submitted an website of the Government of the United Administration contract (including the com-
amendment intended to be proposed to States. petition for or negotiation of a contract),
amendment SA 3867 submitted by Mr. (d) APPROPRIATE CONGRESSIONAL COMMIT- grant, subcontract, or subgrant; or
REED and intended to be proposed to TEES DEFINED.—In this section, the term
‘‘(D) a substantial and specific danger to
the bill H.R. 4350, to authorize appro- ‘‘appropriate congressional committees’’ worker or public health or safety.’’;
means— (B) in paragraph (2)—
priations for fiscal year 2022 for mili-
(1) the Committee on Foreign Affairs, the (i) in subparagraph (A), by striking ‘‘or a
tary activities of the Department of Committee on Financial Services, and the
Defense, for military construction, and representative of a committee of Congress’’
Committee on Ways and Means of the House and inserting ‘‘, a representative of a com-
for defense activities of the Depart- of Representatives; and mittee of Congress, or commission of Con-
ment of Energy, to prescribe military (2) the Committee on Foreign Relations, gress’’;
personnel strengths for such fiscal the Committee on Banking, Housing, and (ii) in subparagraph (B), by inserting ‘‘, in-
year, and for other purposes; which was Urban Affairs, and the Committee on Fi- cluding the Special Inspector General for
ordered to lie on the table; as follows: nance of the Senate. Pandemic Relief and any other Office of In-
At the end of subtitle F of title XII, add spector General established by law’’ after
SA 3899. Ms. WARREN submitted an ‘‘Inspector General’’;
the following:
amendment intended to be proposed to (iii) in subparagraph (G), by striking ‘‘who
SEC. 1264. REPORT ON ALL COMPREHENSIVE
SANCTIONS IMPOSED ON FOREIGN amendment SA 3867 submitted by Mr. has the responsibility to investigate’’ and in-
GOVERNMENTS. REED and intended to be proposed to serting ‘‘authorized to investigate’’; and
(a) IN GENERAL.—Not later than one year the bill H.R. 4350, to authorize appro- (iv) by adding after subparagraph (G) the
after the date of the enactment of this Act, priations for fiscal year 2022 for mili- following new subparagraphs:
the Comptroller General of the United tary activities of the Department of ‘‘(H) The Pandemic Response Account-
States, in consultation with the Secretary of ability Committee.
Defense, for military construction, and
State, the Secretary of the Treasury, and the ‘‘(I) An officer or representative of a labor
head of any other relevant Federal depart-
for defense activities of the Depart- organization.
ment or agency that the Comptroller Gen- ment of Energy, to prescribe military ‘‘(J) The head of an executive agency or a
eral determines necessary, shall submit to personnel strengths for such fiscal designee of such agency head.’’; and
the appropriate congressional committees a year, and for other purposes; which was (C) in paragraph (3)(A)—
report on all comprehensive sanctions im- ordered to lie on the table; as follows: (i) by striking ‘‘an employee’’ and insert-
posed, under any provision of law, on— At the end of subtitle E of title VIII, add ing ‘‘a protected individual’’;
(1) de jure or de facto governments of for- the following: (ii) by striking ‘‘contractor or subcon-
eign countries; and SEC. 857. PROTECTIONS FOR WHISTLEBLOWERS tractor’’ and inserting ‘‘contractor, subcon-
(2) non-state actors that exercise signifi- SEEKING TO ENSURE ACCOUNT- tractor, grantee, or subgrantee’’; and
cant de facto governmental control over a ABILITY AND OVERSIGHT OF COVID– (iii) by striking ‘‘contract or grant’’ and
foreign civilian population. 19 PANDEMIC RESPONSE. inserting ‘‘contract, subcontract, grant, or
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(b) MATTERS TO BE INCLUDED.—The report (a) DEFENSE CONTRACTS.—Section 2409 of subgrant’’;
required by subsection (a) shall include— title 10, United States Code, is amended— (2) in subsection (b)—
(1) an assessment of the effect of sanctions (1) in subsection (a)— (A) in paragraph (1)—
imposed on each government described in (A) by amending paragraph (1) to read as (i) by striking ‘‘A person who believes that
paragraph (1) of that subsection and each follows: the person’’ and inserting ‘‘A protected indi-
non-state actor described in paragraph (2) of ‘‘(1) A protected individual may not be dis- vidual who believes that the protected indi-
that subsection on— charged, demoted, harassed, blacklisted, vidual’’;
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S7382 CONGRESSIONAL RECORD — SENATE October 26, 2021
(ii) by striking ‘‘Space Administration.’’ ‘‘(i) information protected from disclosure (8) in subsection (g)—
and inserting ‘‘Space Administration, who by a provision of law; and (A) by redesignating paragraphs (1), (2), (5),
shall review the complaint for investigation, ‘‘(ii) any additional information the In- (6), and (7) as paragraphs (2), (9), (10), (1), and
and shall investigate the alleged misconduct spector General determines disclosure of (8), respectively;
disclosed by the protected individual if there which would impede a continuing investiga- (B) in paragraph (1), as so redesignated, by
previously has not been such an investiga- tion, if such information is disclosed once striking ‘‘means the following’’ and all that
tion or if the appropriate Inspector General such disclosure would no longer impede such follows through the period at the end and in-
determines that the original investigation investigation, unless the Inspector General serting the following: ‘‘means an arbitrary
was biased or otherwise inadequate.’’; and determines that disclosure of law enforce- and capricious exercise of authority by a
(iii) by striking ‘‘previously been ad- ment techniques, procedures, or information contracting officer or employee that ad-
dressed’’ and inserting ‘‘been filed’’; could reasonably be expected to risk cir- versely affects the rights of any individual,
(B) by amending paragraph (3) to read as cumvention of the law or disclose the iden- or that results in personal gain or advantage
follows: tity of a confidential source.’’; to the officer or employee or to preferred
‘‘(3)(A) A person or body described in sub- (E) in paragraph (3), as redesignated by other individuals.’’; and
section (a)(2) that receives information subparagraph (C), by striking ‘‘may bring a (C) by inserting after paragraph (4) the fol-
under paragraph (1) and any other person or de novo action at law or equity against the lowing new paragraphs:
body to which such information is disclosed contractor to seek compensatory damages’’ ‘‘(5) The term ‘coronavirus pandemic-re-
may not exercise discretion to respond to and inserting ‘‘may bring a de novo action at lated program, project, or activity’—
any inquiry or disclose the identity or iden- law or equity against any entity violating ‘‘(A) means a program, project, or activity
tifying information of the protected indi- subsection (a) to seek compensatory dam- of the executive branch of the Federal Gov-
vidual providing the information without ages’’; and ernment authorized under or carried out
prior explicit written consent of the pro- (F) in paragraph (4), as so redesignated, by using amounts made available under an Act
tected individual. striking ‘‘paragraph (2)’’ and inserting to respond to or to provide aid or assistance
‘‘(B) If disclosure of the identity or identi- ‘‘paragraph (3)’’; to address, relief from, or funding to address
fying information of a protected individual (4) by striking subsection (d); the outbreak of COVID–19 that is enacted be-
providing information under paragraph (1) is (5) by redesignating subsection (e) as sub- fore, on, or after the date of enactment of
required by law, the recipient shall provide section (d); this paragraph; and
timely notice of the disclosure to the pro- (6) by inserting after subsection (d), as so ‘‘(B) includes any program, project, or ac-
tected individual. redesignated, the following new subsection: tivity of the executive branch of the Federal
‘‘(C) The Inspector General investigating ‘‘(e) GENERAL PROVISIONS.—(1) Nothing in Government authorized under or carried out
alleged discrimination under this section this section shall diminish the rights, privi- using amounts made available under—
may not respond to any inquiry or disclose leges, or remedies of any protected indi- ‘‘(i) the Paycheck Protection Program and
any information from or about any protected vidual under any Federal or State law, or Health Care Enhancement Act (Public Law
individual alleging such discrimination, ex- under any collective bargaining agreement. 116–139), or an amendment made by that Act;
cept in accordance with the provisions of ‘‘(2) Notwithstanding any other provision ‘‘(ii) the CARES Act (Public Law 116–136)
section 552a of title 5 (commonly referred to of law, a protected individual shall be im- or an amendment made by that Act;
as the ‘Privacy Act’), or as required by any mune from civil and criminal liability for ‘‘(iii) the Families First Coronavirus Re-
other applicable Federal law.’’; and making the disclosure if the protected indi- sponse Act (Public Law 116–127), or an
(C) by adding at the end the following new vidual would be protected from reprisal amendment made by that Act;
paragraph: under subsection (a). The protected indi- ‘‘(iv) the Coronavirus Preparedness and Re-
‘‘(5) Upon completion of an investigation vidual shall bear the burden required under sponse Supplemental Appropriations Act,
under this subsection into alleged mis- subsection (a) of proving that the individual 2020 (Public Law 116–123), or an amendment
conduct disclosed by the protected indi- would be protected from reprisal under sub- made by that Act; or
vidual, the Inspector General shall submit a section (a) for making the disclosure. This ‘‘(v) division M or N of the Consolidated
report of the findings of the investigation section does not provide a defense against Appropriations Act, 2021 (Public Law 116–
to— activities unrelated to protected activity 260), or an amendment made by that divi-
‘‘(A) the person against whom the mis- under subsection (a). sion.
conduct is alleged; ‘‘(3)(A) Except as provided under subpara- ‘‘(6) The term ‘covered funds’ means any
‘‘(B) the protected individual concerned; graph (C), the rights and remedies provided contract, subcontract, grant, subgrant, loan,
‘‘(C) the Secretary of Defense or the Ad- for in this section may not be waived by any loan guarantee, or other payment for
ministrator of the National Aeronautics and public or private agreement, policy, form, or which—
Space Administration, as applicable; and condition of employment, including by any ‘‘(A) the Federal Government provides any
‘‘(D) the congressional committees of juris- predispute arbitration agreement. portion of the funds or property that is pro-
diction.’’; ‘‘(B) Except as provided under subpara- vided, requested, or demanded; or
(3) in subsection (c)— graph (C), no predispute arbitration agree- ‘‘(B) any portion of the funds are appro-
(A) in paragraph (1)(B), by striking ‘‘com- ment shall be valid or enforceable if it re- priated or otherwise made available under or
pensatory damages (including back pay)’’ quires arbitration of a dispute arising under to carry out a Coronavirus pandemic-related
and inserting ‘‘compensatory damages (in- this section. program, project, or activity.
cluding double back pay)’’; ‘‘(C) Notwithstanding subparagraphs (A) ‘‘(7) The term ‘employee’—
(B) by striking paragraph (7); and (B), an arbitration provision in a collec- ‘‘(A) except as provided under subpara-
(C) by redesignating paragraphs (2) tive bargaining agreement shall be enforce- graph (B), means an individual performing
through (6) as paragraphs (3) through (7); able as to disputes arising under the collec- services on behalf of an employer, including
(D) by inserting after paragraph (1) the fol- tive bargaining agreement. any individual working for an employer
lowing new paragraph: ‘‘(4) Any non-Federal employer receiving under a grant or contract with such em-
‘‘(2)(A) A protected individual alleging a covered funds (and the head of the applicable ployer (including a contractor, subcon-
reprisal under this section shall have access agency in the case of a Federal personal tractor, grantee, subgrantee, or agent of an
to the investigative file of the Office of In- services contract involving covered funds) employer); and
spector General in accordance with section shall prominently post notice on its website ‘‘(B) does not include any Federal em-
552a of title 5. The investigation by the Of- and to each employee of the rights and rem- ployee or member of the uniformed services
fice of Inspector General shall be deemed edies provided under this section in the pre- (as that term is defined in section 101(a)(5) of
closed for purposes of disclosure under such dominant native languages of the work- title 10).’’; and
section when an individual files an appeal to force.’’; (D) by inserting after paragraph (10), as so
the head of an executive agency or a court of (7) in subsection (f)— redesignated, the following new paragraphs:
competent jurisdiction. (A) by inserting ‘‘(1)’’ before ‘‘Nothing’’; ‘‘(11) The term ‘non-Federal employer’—
‘‘(B) In the event a protected individual al- (B) by adding ‘‘or other reprisal’’ after ‘‘(A) means any employer—
leging a reprisal under this section brings a ‘‘discrimination’’; ‘‘(i) with respect to covered funds—
civil action under this subsection, the pro- (C) by striking ‘‘an employee’’ and insert- ‘‘(I) the contractor, subcontractor, grant-
tected individual and the non-Federal em- ing ‘‘a protected individual’’; ee, subgrantee, or recipient, as the case may
ployer (or the Secretary of Defense or the (D) by striking ‘‘the employee’’ and insert- be, if the contractor, subcontractor, grantee,
Administrator of the National Aeronautics ing ‘‘the protected individual’’; and subgrantee, or recipient is an employer; and
and Space Administration, as applicable, in (E) by adding at the end the following new ‘‘(II) any professional membership organi-
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the case of a Federal personal services con- paragraph: zation, certification or other professional
tract involving covered funds), if applicable, ‘‘(2) State and local employees may file body, any agent or licensee of the Federal
shall have access to the investigative file of complaints for relief under this section, and Government, or any person acting directly
the Office of Inspector General in accordance nothing in this section may be construed to or indirectly in the interest of an employer
with section 552a of title 5. preempt, preclude, or limit the protections receiving covered funds; or
‘‘(C) The Inspector General may exclude provided for public or private employees ‘‘(ii) with respect to covered funds received
from disclosure— under State or local whistleblower laws.’’; by a State or local government, the State or
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October 26, 2021 CONGRESSIONAL RECORD — SENATE S7383
local government receiving the funds and (iii) in subparagraph (G), by striking ‘‘who have access to the investigative file of the
any contractor or subcontractor of the State has the responsibility to investigate’’ and in- Office of Inspector General in accordance
or local government; and serting ‘‘authorized to investigate’’; and with section 552a of title 5. The investigation
‘‘(B) does not mean any department, agen- (iv) by adding after subparagraph (G) the by the Office of Inspector General shall be
cy, or other entity of the Federal Govern- following new subparagraphs: deemed closed for purposes of disclosure
ment, except with respect to a personal serv- ‘‘(H) The Pandemic Response Account- under such section when an individual files
ices contractor. ability Committee. an appeal to the head of an executive agency
‘‘(12) The term ‘protected individual’ ‘‘(I) An officer or representative of a labor or a court of competent jurisdiction.
means— organization. ‘‘(B) CIVIL ACTION.—In the event a pro-
‘‘(A) a contractor, subcontractor, grantee, ‘‘(J) The head of an executive agency or a tected individual alleging a reprisal under
or subgrantee; designee of such agency head.’’; and this section brings a civil action under this
‘‘(B) an employee, applicant, or former em- (C) in paragraph 3(A)— subsection, the protected individual and the
ployee of a contractor, subcontractor, grant- (i) by striking ‘‘an employee’’ and insert- non-Federal employer (or the head of the ap-
ee, or subgrantee; or ing ‘‘a protected individual’’; and plicable executive agency in the case of a
‘‘(C) a personal services contractor who en- (ii) by striking ‘‘contract or grant’’ and in- Federal personal services contract involving
gages in activity for which any discrimina- serting ‘‘contract, subcontract, grant, or covered funds), if applicable, shall have ac-
tion is prohibited under subsection (a). subgrant’’; cess to the investigative file of the Office of
‘‘(13) The term ‘State or local government’ (2) in subsection (b)— Inspector General in accordance with section
means— (A) in paragraph (1)— 552a of title 5.
‘‘(A) the government of each of the several (i) by striking ‘‘A person who believes’’ and ‘‘(C) EXCEPTION.—The Inspector General
States, the District of Columbia, the Com- inserting ‘‘Any person described under sub- may exclude from disclosure—
monwealth of Puerto Rico, Guam, American section (a)(1) who believes’’; and ‘‘(i) information protected from disclosure
Samoa, the Virgin Islands, the Common- (ii) by inserting ‘‘, who shall review the by a provision of law; and
wealth of the Northern Mariana Islands, or complaint for investigation, and shall inves- ‘‘(ii) any additional information the In-
any other territory or possession of the tigate the alleged misconduct disclosed by spector General determines disclosure of
United States; or the protected individual if there previously which would impede a continuing investiga-
‘‘(B) the government of any political sub- has not been such an investigation or if the tion, if such information is disclosed once
division of a government listed in subpara- Inspector General determines that the origi- such disclosure would no longer impede such
graph (A).’’. nal investigation was biased or otherwise in- investigation, unless the Inspector General
(b) CIVILIAN CONTRACTS.—Section 4712 of adequate’’ after ‘‘to the Inspector General of determines that disclosure of law enforce-
title 41, United States Code, is amended— the executive agency involved’’; ment techniques, procedures, or information
(1) in subsection (a)— (B) by amending paragraph (3) to read as could reasonably be expected to risk cir-
(A) by amending paragraph (1) to read as follows: cumvention of the law or disclose the iden-
follows: ‘‘(3) PROTECTION OF WHISTLEBLOWER IDEN- tity of a confidential source.’’;
‘‘(1) IN GENERAL.—A protected individual TITY.—
(E) in paragraph (3), as redesignated by
may not be discharged, demoted, harassed, ‘‘(A) IN GENERAL.—A person or body de- subparagraph (C), by striking ‘‘may bring a
blacklisted, prejudiced by any action or lack scribed in subsection (a)(2) that receives in-
de novo action at law or equity against the
of action, or otherwise discriminated against formation under paragraph (1) and any per-
for disclosing, being perceived as disclosing, contractor, subcontractor, grantee, or sub-
son or body to which the officer or entity
or preparing to disclose (including assisting grantee to seek compensatory damages’’ and
discloses the information may not exercise
in disclosing, being perceived as assisting in inserting ‘‘may bring a de novo action at law
discretion to respond to any inquiry or dis-
disclosing, and including a disclosure made or equity against any entity violating sub-
close the identity or identifying information
in the ordinary course of job duties) to a per- section (a) to seek compensatory damages’’;
of the protected individual providing the in-
son or body described in paragraph (2) infor- and
formation without prior explicit written con-
mation that the protected individual reason- (F) in paragraph (4), as so redesignated, by
sent of the protected individual.
ably believes is evidence of misconduct that striking ‘‘paragraph (2)’’ and inserting
‘‘(B) NOTICE.—If disclosure of the identity
violates, obstructs, or undermines any law, or identifying information of a protected in- ‘‘paragraph (3)’’;
rule, or regulation related to any Federal dividual providing information under para- (4) by striking subsection (d);
contract (including the competition for or graph (1) is required by law, the recipient (5) by redesignating subsections (e) and (f)
negotiation of a contract) or grant, including shall provide timely notice of the disclosure as subsections (d) and (e), respectively;
any statute, rule, or regulation with respect to the protected individual. (6) in subsection (d), as redesignated by
to any Coronavirus pandemic-related pro- ‘‘(C) PRIVACY OF INFORMATION.—The Inspec- paragraph (5)—
gram, project, or activity, and also includ- tor General investigating alleged discrimina- (A) by inserting ‘‘(1)’’ before ‘‘Nothing’’;
ing— tion under this section may not respond to (B) by adding ‘‘or other reprisal’’ after
‘‘(A)(i) gross mismanagement of an agency any inquiry or disclose any information from ‘‘discrimination’’;
contract, subcontract, grant, or subgrant re- or about any protected individual alleging (C) by striking ‘‘an employee’’ and insert-
lating to covered funds; such discrimination, except in accordance ing ‘‘a protected individual’’;
‘‘(ii) a gross waste of covered funds; with the provisions of section 552a of title 5 (D) by striking ‘‘the employee’’ and insert-
‘‘(iii) a substantial and specific danger to (commonly referred to as the ‘Privacy Act’), ing ‘‘the protected individual’’; and
worker or public health or safety; or as required by any other applicable Fed- (E) by adding at the end the following new
‘‘(iv) an abuse of authority related to the eral law.’’; and paragraph:
distribution, implementation, or use of cov- (C) by adding at the end the following new ‘‘(2) State and local employees may file
ered funds, including conflict of interest or paragraph: complaints for relief under this section, and
partiality; and ‘‘(5) REPORT.—Upon completion of an in- nothing in this section may be construed to
‘‘(v) any violation of any statute, rule, or vestigation under this subsection into al- preempt, preclude, or limit the protections
regulation related to an agency contract, leged misconduct disclosed by the protected provided for public or private employees
subcontract (including the competition for individual, the Inspector General shall sub- under State or local whistleblower laws.’’;
or negotiation of a contract or subcontract), mit a report of the findings of the investiga- (7) by inserting after subsection (e), as so
grant, or subgrant, awarded or issued relat- tion to— redesignated, the following new subsection:
ing to covered funds; or ‘‘(A) the person; ‘‘(f) GENERAL PROVISIONS.—
‘‘(B) refusing to obey an order that the pro- ‘‘(B) the contractor, subcontractor, grant- ‘‘(1) RIGHTS RETAINED BY EMPLOYEE.—Noth-
tected individual reasonably believes would ee, or subgrantee concerned; ing in this section shall diminish the rights,
require that individual to violate a statute, ‘‘(C) the head of the agency; and privileges, or remedies of any protected indi-
rule, or regulation with respect to any cov- ‘‘(D) the congressional committees of juris- vidual under any Federal or State law, or
ered funds, including any coronavirus pan- diction.’’; under any collective bargaining agreement.
demic-related program, project, or activ- (3) in subsection (c)— ‘‘(2) LIABILITY.—Notwithstanding any
ity.’’; (A) in paragraph (1)(B), by striking ‘‘com- other provision of law, a protected individual
(B) in paragraph (2)— pensatory damages (including back pay)’’ shall be immune from civil and criminal li-
(i) in subparagraph (A), by striking ‘‘or a and inserting ‘‘compensatory damages (in- ability for making the disclosure if the pro-
representative of a committee of Congress’’ cluding double back pay)’’; tected individual would be protected from re-
and inserting ‘‘, a representative of a com- (B) by striking paragraph (7); prisal under subsection (a). The protected in-
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mittee of Congress, or a commission of Con- (C) by redesignating paragraphs (2) dividual shall bear the burden required under
gress’’; through (6) as paragraphs (3) through (7); subsection (a) of proving that the individual
(ii) in subparagraph (B), by inserting ‘‘, in- (D) by inserting after paragraph (1) the fol- would be protected from reprisal under sub-
cluding the Special Inspector General for lowing new paragraph: section (a) for making the disclosure. This
Pandemic Relief and any other Office of In- ‘‘(2) ACCESS TO INVESTIGATIVE FILE.— paragraph does not provide a defense against
spector General established by law’’ after ‘‘(A) IN GENERAL.—A protected individual activities unrelated to protected activity
‘‘Inspector General’’; alleging a reprisal under this section shall under subsection (a).
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S7384 CONGRESSIONAL RECORD — SENATE October 26, 2021
‘‘(3) NONENFORCEABILITY OF CERTAIN PROVI- ‘‘(4) The term ‘employee’— for defense activities of the Depart-
SIONS WAIVING OR OVERRIDING RIGHTS AND ‘‘(A) except as provided under subpara- ment of Energy, to prescribe military
REMEDIES OR REQUIRING ARBITRATION OF DIS- graph (B), means an individual performing personnel strengths for such fiscal
PUTES.— services on behalf of an employer, including year, and for other purposes; which was
‘‘(A) WAIVER OF RIGHTS AND REMEDIES.—Ex- any individual working for an employer
cept as provided under subparagraph (C), the under a grant or contract with such em-
ordered to lie on the table; as follows:
rights and remedies provided for in this sec- ployer (including a contractor, subcon- SEC. 2831. CONSIDERATION OF PUBLIC EDU-
tion may not be waived by any public or pri- tractor, grantee, subgrantee, or agent of an CATION WHEN MAKING BASING DE-
CISIONS.
vate agreement, policy, form, or condition of employer); and
employment, including by any predispute ar- (a) IN GENERAL.—Section 2883 of the Wil-
‘‘(B) does not include any Federal em-
bitration agreement. liam M. (Mac) Thornberry National Defense
ployee or member of the uniformed services
‘‘(B) PREDISPUTE ARBITRATION AGREE- Authorization Act for Fiscal Year 2021 (Pub-
(as that term is defined in section 101(a)(5) of
MENTS.—Except as provided under subpara-
lic Law 116–283) is amended—
title 10).’’; and
graph (C), no predispute arbitration agree- (1) by redesignating subsections (e)
(D) by inserting after paragraph (5), as re-
ment shall be valid or enforceable if it re- through (j) as subsections (f) through (k), re-
designated by subparagraph (B), the fol-
quires arbitration of a dispute arising under spectively; and
lowing new paragraphs:
this section. (2) by inserting after subsection (d) the fol-
‘‘(6) The term ‘non-Federal employer’—
‘‘(C) EXCEPTION FOR COLLECTIVE BARGAINING lowing new subsection (e):
‘‘(A) means any employer— ‘‘(e) EDUCATION.—
AGREEMENTS.—Notwithstanding subpara- ‘‘(i) with respect to covered funds—
graphs (A) and (B), an arbitration provision ‘‘(1) IN GENERAL.—With regard to a mili-
‘‘(I) the contractor, subcontractor, grant- tary housing area in which an installation
in a collective bargaining agreement shall be ee, subgrantee, or recipient, as the case may
enforceable as to disputes arising under the subject to a basing decision covered by sub-
be, if the contractor, subcontractor, grantee, section (a) is or will be located, the Sec-
collective bargaining agreement. subgrantee, or recipient is an employer; and
‘‘(4) REQUIREMENT TO POST NOTICE OF retary of the military department concerned
‘‘(II) any professional membership organi- shall take into account the extent to which
RIGHTS AND REMEDIES.—Any non-Federal em- zation, certification or other professional
ployer receiving covered funds (and the head high-quality public education is available
body, any agent or licensee of the Federal and accessible to dependents of members of
of the applicable agency in the case of a Fed- Government, or any person acting directly
eral personal services contract involving the Armed Forces in the military housing
or indirectly in the interest of an employer area by comparing progress of students
covered funds) shall prominently post notice receiving covered funds; or
on its website and to each employee of the served by relevant local educational agencies
‘‘(ii) with respect to covered funds received described in paragraph (4) under the state-
rights and remedies provided under this sec- by a State or local government, the State or
tion, in the predominant native languages of wide accountability system described in sec-
local government receiving the funds and tion 1111 of the Elementary and Secondary
the workforce.’’; and any contractor or subcontractor of the State
(8) in subsection (g)— Education Act of 1965 (20 U.S.C. 6311) as com-
or local government; and pared to the progress of all students in such
(A) in paragraph (1), by striking ‘‘that is ‘‘(B) does not mean any department, agen-
inconsistent’’ and all that follows through State under such system.’’.
cy, or other entity of the Federal Govern- ‘‘(2) PUBLICATION OF DATA.—The Secretary
the period at the end and inserting ‘‘by a
ment, except with respect to a personal serv- of the military department concerned shall
contracting officer or employee that ad-
ices contractor. make the data used in carrying out para-
versely affects the rights of any individual,
‘‘(7) The term ‘protected individual’ graph (1) available to the public in a manner
or that results in personal gain or advantage
means— that ensures that States and communities
to the officer or employee or to preferred
‘‘(A) a contractor, subcontractor, grantee, can understand the process for making deci-
other individuals.’’;
or subgrantee; sions under such paragraph.
(B) by redesignating paragraph (2) as para-
‘‘(B) an employee, applicant or former em- ‘‘(3) CONSULTATION.—In carrying out para-
graph (5);
ployee of a contractor, subcontractor, grant- graph (1) with respect to an installation sub-
(C) by inserting after paragraph (1) the fol-
lowing new paragraphs: ee, or subgrantee; or ject to a basing decision covered by sub-
‘‘(2) The term ‘coronavirus pandemic-re- ‘‘(C) a personal services contractor who en- section (a), the Secretary of the military de-
lated program, project, or activity’— gages in activity for which any discrimina- partment concerned shall consult with and
‘‘(A) means a program, project, or activity tion is prohibited under subsection (a). seek input from leadership and education li-
of the executive branch of the Federal Gov- ‘‘(8) The term ‘State or local government’ aisons for the installation and State, local,
ernment authorized under or carried out means— and Tribal education agencies.
using amounts made available under an Act ‘‘(A) the government of each of the several ‘‘(4) RELEVANT LOCAL EDUCATIONAL AGEN-
to respond to or to provide aid or assistance States, the District of Columbia, the Com- CIES DESCRIBED.—Relevant local educational
to address, relief from, or funding to address monwealth of Puerto Rico, Guam, American agencies described in this paragraph in-
the outbreak of COVID–19 that is enacted be- Samoa, the Virgin Islands, the Common- clude—
fore, on, or after the date of enactment of wealth of the Northern Mariana Islands, or ‘‘(A) local educational agencies that serve
this paragraph; and any other territory or possession of the dependents of members of the Armed Forces
‘‘(B) includes any program, project, or ac- United States; or in the State in which the military housing
tivity of the executive branch of the Federal ‘‘(B) the government of any political sub- area described in paragraph (1) is located;
Government authorized under or carried out division of a government listed in subpara- and
using amounts made available under— graph (A).’’. ‘‘(B) local educational agencies in such
‘‘(i) the Paycheck Protection Program and (c) COMPLAINT PORTAL.—The Special In-
State that serve or would be likely to serve
Health Care Enhancement Act (Public Law spector General for Pandemic Relief, the
a significant number or percentage of de-
116–139), or an amendment made by that Act; Pandemic Relief Accountability Committee,
pendents of members of the Armed Forces in
‘‘(ii) the CARES Act (Public Law 116–136), and the Congressional Oversight Commission
shall each establish a public website where the military housing area described in para-
or an amendment made by that Act; graph (1) as determined by the Secretary of
any individual who believes that the indi-
‘‘(iii) the Families First Coronavirus Re- the military department concerned, in con-
vidual has been subjected to a reprisal pro-
sponse Act (Public Law 116–127), or an sultation with the education liaisons for the
hibited under subsection (a) of section 2409 of
amendment made by that Act; installation described in such paragraph.’’.
title 10, United States Code, or subsection (a)
‘‘(iv) the Coronavirus Preparedness and Re- (b) CONFORMING AMENDMENT.—Subsection
of section 4712 of title 41, United States Code,
sponse Supplemental Appropriations Act, (a) of such section is amended by striking
as amended by subsections (a) and (b), re-
2020 (Public Law 116–123), or an amendment ‘‘subsection (e)’’ and inserting ‘‘subsection
spectively, of this section, may submit a
made by that Act; or (f)’’
complaint regarding the reprisal. Any com-
‘‘(v) division M or N of the Consolidated plaint so submitted shall be transmitted to
Appropriations Act, 2021 (Public Law 116– SA 3901. Mr. WARNOCK submitted an
the relevant Office of Inspector General for
260), or an amendment made by that divi- enforcement in accordance with such sec-
amendment intended to be proposed to
sion. tions, including notice to the complainant of amendment SA 3867 submitted by Mr.
‘‘(3) The term ‘covered funds’ means any the referral and relevant procedures. REED and intended to be proposed to
contract, subcontract, grant, subgrant, loan, the bill H.R. 4350, to authorize appro-
loan guarantee, or other payment for SA 3900. Mr. WARNOCK submitted an priations for fiscal year 2022 for mili-
which— amendment intended to be proposed to tary activities of the Department of
ctelli on DSK11ZRN23PROD with SENATE
‘‘(A) the Federal Government provides any amendment SA 3867 submitted by Mr. Defense, for military construction, and
portion of the funds or property that is pro-
vided, requested, or demanded; or
REED and intended to be proposed to for defense activities of the Depart-
‘‘(B) any portion of the funds are appro- the bill H.R. 4350, to authorize appro- ment of Energy, to prescribe military
priated or otherwise made available under or priations for fiscal year 2022 for mili- personnel strengths for such fiscal
to carry out a Coronavirus pandemic-related tary activities of the Department of year, and for other purposes; which was
program, project, or activity. Defense, for military construction, and ordered to lie on the table; as follows:
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