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                            Subpart 3.5 - Other Improper Business Practices
        
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FAC Number: 2024-03 Effective Date: 02/23/2024
PartPart 1Part 2Part 3Part 4Part 5Part 6Part 7Part 8Part 9Part 10Part 11Part 12Part 13Part 14Part 15Part 16Part 17Part 18Part 19Part 20Part 21Part 22Part 23Part 24Part 25Part 26Part 27Part 28Part 29Part 30Part 31Part 32Part 33Part 34Part 35Part 36Part 37Part 38Part 39Part 40Part 41Part 42Part 43Part 44Part 45Part 46Part 47Part 48Part 49Part 50Part 51Part 52Part 53
Subpart3.03.13.23.33.43.53.63.73.83.93.103.11
Section3.5013.5023.503
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Subpart 3.5 - Other Improper Business PracticesSubpart 3.5 - Other Improper Business Practices    **Parent topic:**  Part 3 - Improper Business Practices and Personal Conflicts of Interest3.501 Buying-in.    3.501-1 Definition.       *Buying-in*, as used in this section, means submitting an offer below anticipated costs, expecting to-(1) Increase the contract amount after award (*e.g.,* through unnecessary or excessively priced change orders); or                                                                     (2) Receive follow-on contracts at artificially high prices to recover losses incurred on the buy-in contract.3.501-2 General.       (a)                    						            Buying-in may decrease competition	or result in poor contract performance. The contracting officer	must take appropriate action to ensure buying-in losses are not	recovered by the contractor through the pricing of-                                                         (1)                          								                Change	orders; or                                                            (2)                          								                Follow-on	contracts subject to cost analysis.                                                                             (b)                    						            The Government	should minimize the opportunity for buying-in by seeking a price	commitment covering as much of the entire program concerned as is	practical by using-                                                         (1)                          								                Multiyear contracting, with a	requirement in the solicitation that a price be submitted only for	the total multi-year quantity; or                                                            (2)                          								                Priced options	for additional quantities that, together with the firm contract	quantity, equal the program requirements (see  subpart  17.2).                                                                             (c)                    						            Other safeguards	are available to the contracting officer to preclude recovery of	buying-in losses (*e.g.,* amortization of nonrecurring costs	(see  15.408,  Table  15-2, paragraph	A, column (2) under "Formats for Submission of Line Item Summaries")	and treatment of unreasonable price quotations (see  15.405).3.502 Subcontractor kickbacks.    3.502-1 Definitions.       As used in this section—          *Kickback* means any money, fee, commission, credit, gift, gratuity, thing of value, or compensation of any kind which is provided to any prime contractor, prime contractor employee, subcontractor, or subcontractor employee for the purpose of improperly obtaining or rewarding favorable treatment in connection with a prime contract or in connection with a subcontract relating to a prime contract.          *Person* means a corporation, partnership, business association of any kind, trust, joint-stock company, or individual.          *Prime contract* means a contract or contractual action entered into by the United States for the purpose of obtaining supplies, materials, equipment, or services of any kind.          *Prime Contractor* means a person who has entered into a prime contract with the United States.          *Prime Contractor employee*, as used in this section, means any officer, partner, employee, or agent of a prime contractor.          *Subcontract* means a contract or contractual action entered into by a prime contractor or subcontractor for the purpose of obtaining supplies, materials, equipment, or services of any kind under a prime contract.          *Subcontractor*—(1) Means any person, other than the prime contractor, who offers to furnish or furnishes any supplies, materials, equipment, or services of any kind under a prime contract or a subcontract entered into in connection with such prime contract; and                                                                     (2) Includes any person who offers to furnish or furnishes general supplies to the prime contractor or a higher tier subcontractor.3.502-2 Subcontractor kickbacks.       The Anti-Kickback Act of 1986 (now codified at 41 U.S.C. chapter 87, Kickbacks,) was passed to deter subcontractors from making payments and contractors from accepting payments for the purpose of improperly obtaining or rewarding favorable treatment in connection with a prime contract or a subcontract relating to a prime contract. The Kickbacks statute-                                       (a) Prohibits any person from-                                                         (1) Providing, attempting to provide, or offering to provide any kickback;                                                            (2) Soliciting, accepting, or attempting to accept any kickback; or                                                            (3) Including, directly or indirectly, the amount of any kickback in the contract price charged by a subcontractor to a prime contractor or a higher tier subcontractor or in the contract price charged by a prime contractor to the United States.                                                                             (b) Imposes criminal penalties on any person who knowingly and willfully engages in the prohibited conduct addressed in paragraph (a) of this section.                                          (c) Provides for the recovery of civil penalties by the United States from any person who knowingly engages in such prohibited conduct and from any person whose employee, subcontractor, or subcontractor employee provides, accepts, or charges a kickback.                                          (d) Provides that-                                                         (1) The contracting officer may offset the amount of a kickback against monies owed by the United States to the prime contractor under the prime contract to which such kickback relates;                                                            (2) The contracting officer may direct a prime contractor to withhold from any sums owed to a subcontractor under a subcontract of the prime contract the amount of any kickback which was or may be offset against the prime contractor under paragraph (d)(1) of this section; and                                                            (3) An offset under paragraph (d)(1) or a direction under paragraph (d)(2) of this section is a claim by the Government for the purposes of 41 U.S.C. chapter 71, Contract Disputes.                                                                             (e) Authorizes contracting officers to order that sums withheld under paragraph (d)(2) of this section be paid to the contracting agency, or if the sum has already been offset against the prime contractor, that it be retained by the prime contractor.                                          (f) Requires the prime contractor to notify the contracting officer when the withholding under paragraph (d)(2) of this section has been accomplished unless the amount withheld has been paid to the Government.                                          (g) Requires a prime contractor or subcontractor to report in writing to the inspector general of the contracting agency, the head of the contracting agency if the agency does not have an inspector general, or the Attorney General any possible violation of the Kickbacks statute when the prime contractor or subcontractor has reasonable grounds to believe such violation may have occurred.                                          (h) Provides that, for the purpose of ascertaining whether there has been a violation of the Kickbacks statute with respect to any prime contract, the Government Accountability Office and the inspector general of the contracting agency, or a representative of such contracting agency designated by the head of the agency if the agency does not have an inspector general, shall have access to and may inspect the facilities and audit the books and records, including any electronic data or records, of any prime contractor or subcontractor under a prime contract awarded by such agency.                                          (i)                   Requires each contracting agency to include in each prime contract, other than for commercial products or commercial services, exceeding $150,000, a requirement that the prime contractor shall–                                                         (1) Have in place and follow reasonable procedures designed to prevent and detect violations of the Kickbacks statute in its own operations and direct business relationships (*e.g.,* company ethics rules prohibiting kickbacks by employees, agents, or subcontractors; education programs for new employees and subcontractors, explaining policies about kickbacks, related company procedures and the consequences of detection; procurement procedures to minimize the opportunity for kickbacks; audit procedures designed to detect kickbacks; periodic surveys of subcontractors to elicit information about kickbacks; procedures to report kickbacks to law enforcement officials; annual declarations by employees of gifts or gratuities received from subcontractors; annual employee declarations that they have violated no company ethics rules; personnel practices that document unethical or illegal behavior and make such information available to prospective employers); and                                                            (2) Cooperate fully with any Federal agency investigating a possible violation of the Kickbacks statute.                                                                             (j) Notwithstanding paragraph (i) of this section, a prime contractor shall cooperate fully with any Federal Government agency investigating a violation of   41 U.S.C. 8702 (see   41 U.S.C. 8703(b)).3.502-3 Contract clause.       The contracting officer shall insert the clause at  52.203-7, Anti-Kickback Procedures, in solicitations and contracts exceeding $150,000, other than those for commercial products or commercial services (see  part  12).3.503 Unreasonable restrictions on subcontractor sales.    3.503-1 Policy.       10 U.S.C. 4655                              and   41 U.S.C. 4704 require that subcontractors not be unreasonably precluded from making direct sales to the Government of any supplies or services made or furnished under a contract. However, this does not preclude contractors from asserting rights that are otherwise authorized by law or regulation.3.503-2 Contract clause.       The contracting officer shall insert the clause at  52.203-6, Restrictions on Subcontractor Sales to the Government, in solicitations and contracts exceeding the simplified acquisition threshold. For the acquisition of commercial products or commercial services, the contracting officer shall use the clause with its Alternate I.
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