RE: H. AMDT. 89 to H.R. 2216 and H. AMDT 124 to H.R. 2217

Floor Speech

Mr. GRAYSON. Mr. Speaker, I introduced the amendments in the Veterans-Military Construction and Homeland Security appropriations bills that forbid contracting with offerors who have been indicted for, or convicted of, fraud or similar egregious acts, all of which establish a categorical, unequivocal and definitive lack of present responsibility. The intent of Congress with regard to these provisions, and other such provisions, is as follows: These provisions are to be construed broadly, not only for the sake of ensuring confidence in government contracting, but also to protect the public fisc. No exceptions of any kind are intended.

The terms ``embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion, violating Federal criminal tax laws, or receiving stolen property'' and other such terms in these provisions are intended to be construed as broadly as possible. They extend to any offense that refers or relates to such offenses, whether Federal, State, county, municipal or tribal.

The term ``offeror'' includes all affiliates of any kind, including but not limited to parent companies, sister companies, subsidiaries and commonly controlled entities. The term is to be construed broadly.

To the extent feasible, this prohibition extends to the exercise of contract options in contracts that have already been awarded, and to contract modifications that increase or may increase contract price or cost.

It is the sense of Congress that these provisions, specifically including the prohibition on contract awards to indicted contractors, comport with due process and all other constitutional standards. Among other reasons, this is because of the due process protections preceding an indictment, the opportunity to challenge an indictment immediately in court, and both constitutional and statutory rights to a speedy trial. No contractor should have standing to challenge this prohibition based on an indictment without first exhausting legal challenges to the indictment. An indicted contractor that fails to exploit any provision providing for a speedy trial waives the right to challenge this prohibition.

If an offeror should make the certification in question but fails to do so, or an offeror falsely certifies, then any resulting contract has been procured by fraud, and no future payments thereunder are permitted, and all past payments constitute false claims, regardless of whether any work has been done or deliverables accepted. A false certification shall be actionable under Section 1001 of the U.S. Criminal Code, and other applicable law, and any resulting indictment or conviction shall qualify for the prohibition within these provisions. Any request for payment under a resulting contract shall qualify as both a criminal false claim and a civil false claim.

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