Part 3 - Improper Business Practices and

Personal Conflicts of Interest

3.000 Scope of part.

Subpart 3.1 - Safeguards

3.101 Standards of conduct.

3.101-1 General.

3.101-2 Solicitation and acceptance of gratuities by Government personnel.

3.101-3 Agency regulations.

3.102 [Reserved]

3.103 Independent pricing.

3.103-1 Solicitation provision.

3.103-2 Evaluating the certification.

3.103-3 The need for further certifications.

3.104 Procurement integrity.

3.104-1 Definitions.

3.104-2 General.

3.104-3 Statutory and related prohibitions, restrictions, and requirements.

3.104-4 Disclosure, protection, and marking of contractor bid or proposal information and source

selection information.

3.104-5 Disqualification.

3.104-6 Ethics advisory opinions regarding prohibitions on a former official’s acceptance of

compensation from a contractor.

3.104-7 Violations or possible violations.

3.104-8 Criminal and civil penalties, and further administrative remedies.

3.104-9 Contract clauses.

Subpart 3.2 - Contractor Gratuities to Government Personnel

3.201 Applicability.

3.202 Contract clause.
3.203 Reporting suspected violations of the Gratuities clause.

3.204 Treatment of violations.

Subpart 3.3 - Reports of Suspected Antitrust Violations

3.301 General.

3.302 Definitions.

3.303 Reporting suspected antitrust violations.

Subpart 3.4 - Contingent Fees

3.400 Scope of subpart.

3.401 Definitions.

3.402 Statutory requirements.

3.403 Applicability.

3.404 Contract clause.

3.405 Misrepresentations or violations of the Covenant Against Contingent Fees.

3.406 Records.

Subpart 3.5 - Other Improper Business Practices

3.501 Buying-in.

3.501-1 Definition.

3.501-2 General.

3.502 Subcontractor kickbacks.

3.502-1 Definitions.

3.502-2 Subcontractor kickbacks.

3.502-3 Contract clause.

3.503 Unreasonable restrictions on subcontractor sales.

3.503-1 Policy.

3.503-2 Contract clause.

Subpart 3.6 - Contracts with Government Employees or Organizations Owned or Controlled by Them

3.601 Policy.

3.602 Exceptions.
3.603 Responsibilities of the contracting officer.

Subpart 3.7 - Voiding and Rescinding Contracts

3.700 Scope of subpart.

3.701 Purpose.

3.702 Definition.

3.703 Authority.

3.704 Policy.

3.705 Procedures.

Subpart 3.8 - Limitations on the Payment of Funds to Influence Federal Transactions

3.800 Scope of subpart.

3.801 Definitions.

3.802 Statutory prohibition and requirement.

3.803 Exceptions.

3.804 Policy.

3.805 Exemption.

3.806 Processing suspected violations.

3.807 Civil penalties.

3.808 Solicitation provision and contract clause.

Subpart 3.9 - Whistleblower Protections for Contractor Employees

3.900 Scope of subpart.

3.901 Definitions.

3.902 Classified information.

3.903 Policy.

3.904 Complaints.

3.904-1 Procedures for filing complaints.

3.904-2 Procedures for investigating complaints.

3.905 Remedies and enforcement of orders.

3.905-1 Remedies.
3.905-2 Enforcement of orders.

3.906 Contract clause.

3.907 Whistleblower Protections Under the American Recovery and Reinvestment Act of 2009 (the

Recovery Act).

3.907-1 Definitions.

3.907-2 Policy.

3.907-3 Procedures for filing complaints.

3.907-4 Procedures for investigating complaints.

3.907-5 Access to investigative file of Inspector General.

3.907-6 Remedies and enforcement authority.

3.907-7 Contract clause.

3.908 [Reserved]

3.909 Prohibition on providing funds to an entity that requires certain internal confidentiality

agreements or statements.

3.909-1 Prohibition.

3.909-2 Representation by the offeror.

3.909-3 Solicitation provision and contract clause.

Subpart 3.10 - Contractor Code of Business Ethics and Conduct

3.1000 Scope of subpart.

3.1001 Definitions.

3.1002 Policy.

3.1003 Requirements.

3.1004 Contract clauses.

Subpart 3.11 - Preventing Personal Conflicts of Interest for Contractor Employees Performing

Acquisition Functions

3.1100 Scope of subpart.

3.1101 Definitions.

3.1102 Policy.

3.1103 Procedures.
3.1104 Mitigation or waiver.

3.1105 Violations.

3.1106 Contract clause.

Parent topic: Federal Acquisition Regulation

3.000 Scope of part.

This part prescribes policies and procedures for avoiding improper business practices and personal

conflicts of interest and for dealing with their apparent or actual occurrence.

Subpart 3.1 - Safeguards

3.101 Standards of conduct.

3.101-1 General.

Government business shall be conducted in a manner above reproach and, except as authorized by

statute or regulation, with complete impartiality and with preferential treatment for none.

Transactions relating to the expenditure of public funds require the highest degree of public trust

and an impeccable standard of conduct. The general rule is to avoid strictly any conflict of interest

or even the appearance of a conflict of interest in Government-contractor relationships. While many

Federal laws and regulations place restrictions on the actions of Government personnel, their official

conduct must, in addition, be such that they would have no reluctance to make a full public

disclosure of their actions.

3.101-2 Solicitation and acceptance of gratuities by Government personnel.

As a rule, no Government employee may solicit or accept, directly or indirectly, any gratuity, gift,

favor, entertainment, loan, or anything of monetary value from anyone who (a) has or is seeking to

obtain Government business with the employee’s agency, (b) conducts activities that are regulated

by the employee’s agency, or (c) has interests that may be substantially affected by the performance

or nonperformance of the employee’s official duties. Certain limited exceptions are authorized in

agency regulations.

3.101-3 Agency regulations.

(a) Agencies are required by Executive Order 11222 of May 8,1965, and 5 CFR 735 to prescribe

"Standards of Conduct." These agency standards contain-

(1) Agency-authorized exceptions to 3.101-2; and

(2) Disciplinary measures for persons violating the standards of conduct.
(b) Requirements for employee financial disclosure and restrictions on private employment for

former Government employees are in Office of Personnel Management and agency regulations

implementing Public Law 95-521, which amended 18 U.S.C.207.

3.102 [Reserved]

3.103 Independent pricing.

3.103-1 Solicitation provision.

The contracting officer shall insert the provision at 52.203-2, Certificate of Independent Price

Determination, in solicitations when a firm-fixed-price contract or fixed-price contract with economic

price adjustment is contemplated, unless-

(a) The acquisition is to be made under the simplified acquisition procedures in part 13;

(b) [Reserved]

(c) The solicitation is a request for technical proposals under two-step sealed bidding procedures; or

(d) The solicitation is for utility services for which rates are set by law or regulation.

3.103-2 Evaluating the certification.

(a) Evaluation guidelines.

(1) None of the following, in and of itself, constitutes "disclosure" as it is used in paragraph (a)(2) of

the Certificate of Independent Price Determination (hereafter, the certificate):

(i) The fact that a firm has published price lists, rates, or tariffs covering items being acquired by the

Government.

(ii) The fact that a firm has informed prospective customers of proposed or pending publication of

new or revised price lists for items being acquired by the Government.

(iii) The fact that a firm has sold the same items to commercial customers at the same prices being

offered to the Government.

(2) For the purpose of paragraph (b)(2) of the certificate, an individual may use a blanket

authorization to act as an agent for the person(s) responsible for determining the offered prices if-

(i) The proposed contract to which the certificate applies is clearly within the scope of the

authorization; and

(ii) The person giving the authorization is the person within the offeror’s organization who is

responsible for determining the prices being offered at the time the certification is made in the

particular offer.
(3) If an offer is submitted jointly by two or more concerns, the certification provided by the

representative of each concern applies only to the activities of that concern.

(b) Rejection of offers suspected of being collusive.

(1) If the offeror deleted or modified paragraph (a)(1) or (3) or paragraph (b) of the certificate, the

contracting officer shall reject the offeror’s bid or proposal.

(2) If the offeror deleted or modified paragraph (a)(2) of the certificate, the offeror must have

furnished with its offer a signed statement of the circumstances of the disclosure of prices contained

in the bid or proposal. The chief of the contracting office shall review the altered certificate and the

statement and shall determine, in writing, whether the disclosure was made for the purpose or had

the effect of restricting competition. If the determination is positive, the bid or proposal shall be

rejected; if it is negative, the bid or proposal shall be considered for award.

(3) Whenever an offer is rejected under paragraph (b)(1) or (2)of this section, or the certificate is

suspected of being false, the contracting officer shall report the situation to the Attorney General in

accordance with 3.303.

(4) The determination made under paragraph (2) of this section shall not prevent or inhibit the

prosecution of any criminal or civil actions involving the occurrences or transactions to which the

certificate relates.

3.103-3 The need for further certifications.

A contractor that properly executed the certificate before award does not have to submit a separate

certificate with each proposal to perform a work order or similar ordering instrument issued

pursuant to the terms of the contract, where the Government’s requirements cannot be met from

another source.

3.104 Procurement integrity.

3.104-1 Definitions.

As used in this section—

Agency ethics official means the designated agency ethics official described in 5 CFR 2638.201 or

other designated person, including–

(1) Deputy ethics officials described in 5 CFR 2638.204, to whom authority under 3.104-6 has been

delegated by the designated agency ethics official; and

(2) Alternate designated agency ethics officials described in 5 CFR 2638.202(b).

Compensation means wages, salaries, honoraria, commissions, professional fees, and any other form

of compensation, provided directly or indirectly for services rendered. Compensation is indirectly

provided if it is paid to an entity other than the individual, specifically in exchange for services

provided by the individual.
Contractor bid or proposal information means any of the following information submitted to a

Federal agency as part of or in connection with a bid or proposal to enter into a Federal agency

procurement contract, if that information has not been previously made available to the public or

disclosed publicly:

(1) Cost or pricing data (as defined by 10 U.S.C. 3701(1) with respect to procurements subject to

that section, and 41 U.S.C. 3501(a)(1), with respect to procurements subject to that section.

(2) Indirect costs and direct labor rates.

(3) Proprietary information about manufacturing processes, operations, or techniques marked by the

contractor in accordance with applicable law or regulation.

(4) Information marked by the contractor as "contractor bid or proposal information" in accordance

with applicable law or regulation.

(5) Information marked in accordance with 52.215-1(e).

Decision to award a subcontract or modification of subcontract means a decision to designate award

to a particular source.

Federal agency procurement means the acquisition (by using competitive procedures and awarding

a contract) of goods or services (including construction) from non-Federal sources by a Federal

agency using appropriated funds. For broad agency announcements and small business innovation

research programs, each proposal received by an agency constitutes a separate procurement for

purposes of 41 U.S.C. chapter 21.

In excess of $10,000,000 means–

(1) The value, or estimated value, at the time of award, of the contract, including all options;

(2) The total estimated value at the time of award of all orders under an indefinite-delivery,

indefinite-quantity, or requirements contract;

(3) Any multiple award schedule contract, unless the contracting officer documents a lower

estimate;

(4) The value of a delivery order, task order, or an order under a Basic Ordering Agreement;

(5) The amount paid or to be paid in settlement of a claim; or

(6) The estimated monetary value of negotiated overhead or other rates when applied to the

Government portion of the applicable allocation base.

Official means–

(1) An officer, as defined in 5 U.S.C.2104;

(2) An employee, as defined in 5 U.S.C.2105;

(3) A member of the uniformed services, as defined in 5 U.S.C.2101(3); or

(4) A special Government employee, as defined in 18 U.S.C.202.
Participating personally and substantially in a Federal agency procurement means–

(1) Active and significant involvement of an official in any of the following activities directly related

to that procurement:

(i) Drafting, reviewing, or approving the specification or statement of work for the procurement.:

(ii) Preparing or developing the solicitation.

(iii) Evaluating bids or proposals, or selecting a source.

(iv) Negotiating price or terms and conditions of the contract.

(v) Reviewing and approving the award of the contract.

(2) "Participating personally" means participating directly, and includes the direct and active

supervision of a subordinate's participation in the matter.

(3) "Participating substantially" means that the official's involvement is of significance to the matter.

Substantial participation requires more than official responsibility, knowledge, perfunctory

involvement, or involvement on an administrative or peripheral issue. Participation may be

substantial even though it is not determinative of the outcome of a particular matter. A finding of

substantiality should be based not only on the effort devoted to a matter, but on the importance of

the effort. While a series of peripheral involvements may be insubstantial, the single act of approving

or participating in a critical step may be substantial. However, the review of procurement

documents solely to determine compliance with regulatory, administrative, or budgetary procedures,

does not constitute substantial participation in a procurement.

(4) Generally, an official will not be considered to have participated personally and substantially in a

procurement solely by participating in the following activities:

(i) Agency-level boards, panels, or other advisory committees that review program milestones or

evaluate and make recommendations regarding alternative technologies or approaches for satisfying

broad agency-level missions or objectives.

(ii) The performance of general, technical, engineering, or scientific effort having broad application

not directly associated with a particular procurement, notwithstanding that such general, technical,

engineering, or scientific effort subsequently may be incorporated into a particular procurement.

(iii) Clerical functions supporting the conduct of a particular procurement.

(iv) For procurements to be conducted under the procedures of OMB Circular A-76, participation in

management studies, preparation of in-house cost estimates, preparation of "most efficient

organization" analyses, and furnishing of data or technical support to be used by others in the

development of performance standards, statements of work, or specifications.

Source selection evaluation board means any board, team, council, or other group that evaluates

bids or proposals.

3.104-2 General.

(a) This section implements 41 U.S.C. chapter 21, Restrictions on Obtaining and Disclosing Certain
Information. Agency supplementation of 3.104, including specific definitions to identify individuals

who occupy positions specified in 3.104-3(d)(1)(ii), and any clauses required by 3.104 must be

approved by the senior procurement executive of the agency, unless a law establishes a higher level

of approval for that agency.

(b) Agency officials are reminded that there are other statutes and regulations that deal with the

same or related prohibited conduct, for example-

(1) The offer or acceptance of a bribe or gratuity is prohibited by 18 U.S.C. 201 and 10 U.S.C. 4651.

The acceptance of a gift, under certain circumstances, is prohibited by 5 U.S.C. 7353 and 5 CFR Part

2635;

(2) Contacts with an offeror during the conduct of an acquisition may constitute "seeking

employment," (see Subpart F of 5 CFR Part 2636 and 3.104-3(c)(2)). Government officers and

employees (employees) are prohibited by 18 U.S.C. 208 and 5 CFR Part 2635 from participating

personally and substantially in any particular matter that would affect the financial interests of any

person with whom the employee is seeking employment. An employee who engages in negotiations

or is otherwise seeking employment with an offeror or who has an arrangement concerning future

employment with an offeror must comply with the applicable disqualification requirements of 5 CFR

2635.604 and 2635.606. The statutory prohibition in 18 U.S.C. 208 also may require an employee’s

disqualification from participation in the acquisition even if the employee’s duties may not be

considered "participating personally and substantially," as this term is defined in 3.104-1;

(3) Post-employment restrictions are covered by 18 U.S.C. 207 and 5 CFR parts 2637 and 2641, that

prohibit certain activities by former Government employees, including representation of a contractor

before the Government in relation to any contract or other particular matter involving specific

parties on which the former employee participated personally and substantially while employed by

the Government. Additional restrictions apply to certain senior Government employees and for

particular matters under an employee’s official responsibility;

(4) parts 14 and 15 place restrictions on the release of information related to procurements and

other contractor information that must be protected under 18 U.S.C. 1905;

(5) Release of information both before and after award (see 3.104-4) may be prohibited by the

Privacy Act (5 U.S.C. 552a), the Trade Secrets Act (18 U.S.C. 1905), and other laws; and

(6) Using nonpublic information to further an employee’s private interest or that of another and

engaging in a financial transaction using nonpublic information are prohibited by 5 CFR 2635.703.

3.104-3 Statutory and related prohibitions, restrictions, and requirements.

(a) Prohibition on disclosing procurement information(41 U.S.C. 2102).

(1) A person described in paragraph (a)(2) of this subsection must not, other than as provided by

law, knowingly disclose contractor bid or proposal information or source selection information

before the award of a Federal agency procurement contract to which the information relates. (See

3.104-4(a).)

(2) Paragraph (a)(1) of this subsection applies to any person who-
(i) Is a present or former official of the United States, or a person who is acting or has acted for or

on behalf of, or who is advising or has advised the United States with respect to, a Federal agency

procurement; and

(ii) By virtue of that office, employment, or relationship, has or had access to contractor bid or

proposal information or source selection information.

(b) Prohibition on obtaining procurement information ( 41 U.S.C. 2102). A person must not, other

than as provided by law, knowingly obtain contractor bid or proposal information or source selection

information before the award of a Federal agency procurement contract to which the information

relates.

(c) Actions required when an agency official contacts or is contacted by an offeror regarding nonFederal employment (41 U.S.C. 2103).

(1) If an agency official, participating personally and substantially in a Federal agency procurement

for a contract in excess of the simplified acquisition threshold, contacts or is contacted by a person

who is an offeror in that Federal agency procurement regarding possible non-Federal employment

for that official, the official must-

(i) Promptly report the contact in writing to the official’s supervisor and to the agency ethics official;

and

(ii) Either reject the possibility of non-Federal employment or disqualify himself or herself from

further personal and substantial participation in that Federal agency procurement (see 3.104-5) until

such time as the agency authorizes the official to resume participation in that procurement, in

accordance with the requirements of 18 U.S.C. 208 and applicable agency regulations, because-

(A) The person is no longer an offeror in that Federal agency procurement; or

(B) All discussions with the offeror regarding possible non-Federal employment have terminated

without an agreement or arrangement for employment.

(2) A contact is any of the actions included as "seeking employment" in 5 CFR 2635.603(b). In

addition, unsolicited communications from offerors regarding possible employment are considered

contacts.

(3) Agencies must retain reports of employment contacts for 2 years from the date the report was

submitted.

(4) Conduct that complies with 41 U.S.C. 2104 may be prohibited by other criminal statutes and the

Standards of Ethical Conduct for Employees of the Executive Branch. See 3.104-2(b)(2).

(d) Prohibition on former official's acceptance of compensation from a contractor ( 41 U.S.C. 2104).

(1) A former official of a Federal agency may not accept compensation from a contractor that has

been awarded a competitive or sole source contract, as an employee, officer, director, or consultant

of the contractor within a period of 1 year after such former official-

(i) Served, at the time of selection of the contractor or the award of a contract to that contractor, as

the procuring contracting officer, the source selection authority, a member of a source selection
evaluation board, or the chief of a financial or technical evaluation team in a procurement in which

that contractor was selected for award of a contract in excess of $10,000,000;

(ii) Served as the program manager, deputy program manager, or administrative contracting officer

for a contract in excess of $10,000,000 awarded to that contractor; or

(iii) Personally made for the Federal agency a decision to-

(A) Award a contract, subcontract, modification of a contract or subcontract, or a task order or

delivery order in excess of $10,000,000 to that contractor;

(B) Establish overhead or other rates applicable to a contract or contracts for that contractor that

are valued in excess of $10,000,000;

(C) Approve issuance of a contract payment or payments in excess of $10,000,000 to that contractor;

or

(D) Pay or settle a claim in excess of $10,000,000 with that contractor.

(2) The 1-year prohibition begins on the date-

(i) Of contract award for positions described in paragraph (d)(1)(i) of this subsection, or the date of

contractor selection if the official was not serving in the position on the date of award;

(ii) The official last served in one of the positions described in paragraph (d)(1)(ii) of this subsection;

or

(iii) The official made one of the decisions described in paragraph (d)(1)(iii) of this subsection.

(3) Nothing in paragraph (d)(1) of this subsection may be construed to prohibit a former official of a

Federal agency from accepting compensation from any division or affiliate of a contractor that does

not produce the same or similar products or services as the entity of the contractor that is

responsible for the contract referred to in paragraph (d)(1) of this subsection.

3.104-4 Disclosure, protection, and marking of contractor bid or proposal information and

source selection information.

(a) Except as specifically provided for in this subsection, no person or other entity may disclose

contractor bid or proposal information or source selection information to any person other than a

person authorized, in accordance with applicable agency regulations or procedures, by the agency

head or the contracting officer to receive such information.

(b) Contractor bid or proposal information and source selection information must be protected from

unauthorized disclosure in accordance with 14.401, 15.207, applicable law, and agency regulations.

(c) Individuals unsure if particular information is source selection information, as defined in 2.101,

should consult with agency officials as necessary. Individuals responsible for preparing material that

may be source selection information as described at paragraph (10) of the "source selection

information" definition in 2.101 must mark the cover page and each page that the individual believes

contains source selection information with the legend "Source Selection Information-See FAR 2.101

and 3.104." Although the information in paragraphs (1) through (9) of the definition in 2.101 is

considered to be source selection information whether or not marked, all reasonable efforts must be
made to mark such material with the same legend.

(d) Except as provided in paragraph (d)(3) of this subsection, the contracting officer must notify the

contractor in writing if the contracting officer believes that proprietary information, contractor bid

or proposal information, or information marked in accordance with 52.215-1(e) has been

inappropriately marked. The contractor that has affixed the marking must be given an opportunity to

justify the marking.

(1) If the contractor agrees that the marking is not justified, or does not respond within the time

specified in the notice, the contracting officer may remove the marking and release the information.

(2) If, after reviewing the contractor’s justification, the contracting officer determines that the

marking is not justified, the contracting officer must notify the contractor in writing before releasing

the information.

(3) For technical data marked as proprietary by a contractor, the contracting officer must follow the

procedures in 27.404-5.

(e) This section does not restrict or prohibit-

(1) A contractor from disclosing its own bid or proposal information or the recipient from receiving

that information;

(2) The disclosure or receipt of information, not otherwise protected, relating to a Federal agency

procurement after it has been canceled by the Federal agency, before contract award, unless the

Federal agency plans to resume the procurement;

(3) Individual meetings between a Federal agency official and an offeror or potential offeror for, or a

recipient of, a contract or subcontract under a Federal agency procurement, provided that

unauthorized disclosure or receipt of contractor bid or proposal information or source selection

information does not occur; or

(4) The Government’s use of technical data in a manner consistent with the Government’s rights in

the data.

(f) This section does not authorize-

(1) The withholding of any information pursuant to a proper request from the Congress, any

committee or subcommittee thereof, a Federal agency, the Comptroller General, or an Inspector

General of a Federal agency, except as otherwise authorized by law or regulation. Any release

containing contractor bid or proposal information or source selection information must clearly

identify the information as contractor bid or proposal information or source selection information

related to the conduct of a Federal agency procurement and notify the recipient that the disclosure

of the information is restricted by 41 U.S.C. chapter 21;

(2) The withholding of information from, or restricting its receipt by, the Comptroller General in the

course of a protest against the award or proposed award of a Federal agency procurement contract;

(3) The release of information after award of a contract or cancellation of a procurement if such

information is contractor bid or proposal information or source selection information that pertains to

another procurement; or

(4) The disclosure, solicitation, or receipt of bid or proposal information or source selection
information after award if disclosure, solicitation, or receipt is prohibited by law. (See 3.104-2(b)(5)

and subpart 24.2.)

3.104-5 Disqualification.

(a) Contacts through agents or other intermediaries. Employment contacts between the employee

and the offeror, that are conducted through agents, or other intermediaries, may require

disqualification under 3.104-3(c)(1). These contacts may also require disqualification under other

statutes and regulations. (See 3.104-2(b)(2).)

(b) Disqualification notice. In addition to submitting the contact report required by 3.104-3(c)(1), an

agency official who must disqualify himself or herself pursuant to 3.104-3(c)(1)(ii) must promptly

submit written notice of disqualification from further participation in the procurement to the

contracting officer, the source selection authority if other than the contracting officer, and the

agency official’s immediate supervisor. As a minimum, the notice must-

(1) Identify the procurement;

(2) Describe the nature of the agency official’s participation in the procurement and specify the

approximate dates or time period of participation; and

(3) Identify the offeror and describe its interest in the procurement.

(c) Resumption of participation in a procurement.

(1) The official must remain disqualified until such time as the agency, at its sole and exclusive

discretion, authorizes the official to resume participation in the procurement in accordance with

3.104-3(c)(1)(ii).

(2) After the conditions of 3.104-3(c)(1)(ii)(A) or (B) have been met, the head of the contracting

activity (HCA), after consultation with the agency ethics official, may authorize the disqualified

official to resume participation in the procurement, or may determine that an additional

disqualification period is necessary to protect the integrity of the procurement process. In

determining the disqualification period, the HCA must consider any factors that create an

appearance that the disqualified official acted without complete impartiality in the procurement. The

HCA’s reinstatement decision should be in writing.

(3) Government officer or employee must also comply with the provisions of 18 U.S.C.208 and 5 CFR

part 2635 regarding any resumed participation in a procurement matter. Government officer or

employee may not be reinstated to participate in a procurement matter affecting the financial

interest of someone with whom the individual is seeking employment, unless the individual receives-

(i) A waiver pursuant to 18 U.S.C.208(b)(1) or (b)(3); or

(ii) An authorization in accordance with the requirements of subpart F of 5 CFR part 2635.

3.104-6 Ethics advisory opinions regarding prohibitions on a former official’s acceptance of

compensation from a contractor.
(a) An official or former official of a Federal agency who does not know whether he or she is or

would be precluded by 41 U.S.C. 2104 (see 3.104-3(d)) from accepting compensation from a

particular contractor may request advice from the appropriate agency ethics official before

accepting such compensation.

(b) The request for an advisory opinion must be in writing, include all relevant information

reasonably available to the official or former official, and be dated and signed. The request must

include information about the-

(1) Procurement(s), or decision(s) on matters under 3.104-3(d)(1)(iii), involving the particular

contractor, in which the individual was or is involved, including contract or solicitation numbers,

dates of solicitation or award, a description of the supplies or services procured or to be procured,

and contract amount;

(2) Individual’s participation in the procurement or decision, including the dates or time periods of

that participation, and the nature of the individual’s duties, responsibilities, or actions; and

(3) Contractor, including a description of the products or services produced by the division or

affiliate of the contractor from whom the individual proposes to accept compensation.

(c) Within 30 days after receipt of a request containing complete information, or as soon thereafter

as practicable, the agency ethics official should issue an opinion on whether the proposed conduct

would violate 41 U.S.C. 2104.

(d)

(1) If complete information is not included in the request, the agency ethics official may ask the

requester to provide more information or request information from other persons, including the

source selection authority, the contracting officer, or the requester’s immediate supervisor.

(2) In issuing an opinion, the agency ethics official may rely upon the accuracy of information

furnished by the requester or other agency sources, unless he or she has reason to believe that the

information is fraudulent, misleading, or otherwise incorrect.

(3) If the requester is advised in a written opinion by the agency ethics official that the requester

may accept compensation from a particular contractor, and accepts such compensation in good faith

reliance on that advisory opinion, then neither the requester nor the contractor will be found to have

knowingly violated 41 U.S.C. 2104. If the requester or the contractor has actual knowledge or

reason to believe that the opinion is based upon fraudulent, misleading, or otherwise incorrect

information, their reliance upon the opinion will not be deemed to be in good faith.

3.104-7 Violations or possible violations.

(a) A contracting officer who receives or obtains information of a violation or possible violation of 41

U.S.C. 2102, 2103, or 2104 (see 3.104-3) must determine if the reported violation or possible

violation has any impact on the pending award or selection of the contractor.

(1) If the contracting officer concludes that there is no impact on the procurement, the contracting

officer must forward the information concerning the violation or possible violation and

documentation supporting a determination that there is no impact on the procurement to an
individual designated in accordance with agency procedures.

(i) If that individual concurs, the contracting officer may proceed with the procurement.

(ii) If that individual does not concur, the individual must promptly forward the information and

documentation to the HCA and advise the contracting officer to withhold award.

(2) If the contracting officer concludes that the violation or possible violation impacts the

procurement, the contracting officer must promptly forward the information to the HCA.

(b) The HCA must review all information available and, in accordance with agency procedures, take

appropriate action, such as—

(1) Advise the contracting officer to continue with the procurement;

(2) Begin an investigation;

(3) Refer the information disclosed to appropriate criminal investigative agencies;

(4) Conclude that a violation occurred; or

(5) Recommend that the agency head determine that the contractor, or someone acting for the

contractor, has engaged in conduct constituting an offense punishable under 41 U.S.C. 2105, for the

purpose of voiding or rescinding the contract.

(c) Before concluding that an offeror, contractor, or person has violated 41 U.S.C. chapter 21, the

HCA may consider that the interests of the Government are best served by requesting information

from appropriate parties regarding the violation or possible violation.

(d) If the HCA concludes that 41 U.S.C. chapter 21 has been violated, the HCA may direct the

contracting officer to-

(1) If a contract has not been awarded–

(i) Cancel the procurement;

(ii) Disqualify an offeror; or

(iii) Take any other appropriate actions in the interests of the Government.

(2) If a contract has been awarded-

(i) Effect appropriate contractual remedies, including profit recapture under the clause at 52.203-10,

Price or Fee Adjustment for Illegal or Improper Activity, or, if the contract has been rescinded under

paragraph (d)(2)(ii) of this subsection, recovery of the amount expended under the contract;

(ii) Void or rescind the contract with respect to which–

(A) The contractor or someone acting for the contractor has been convicted for an offense where the

conduct constitutes a violation of 41 U.S.C. 2102 for the purpose of either-

(1) Exchanging the information covered by the subsections for anything of value; or

(2) Obtaining or giving anyone a competitive advantage in the award of a Federal agency
procurement contract; or

(B) The agency head has determined, based upon a preponderance of the evidence, that the

contractor or someone acting for the contractor has engaged in conduct constituting an offense

punishable under 41 U.S.C. 2105(a); or

(iii) Take any other appropriate actions in the best interests of the Government.

(3) Refer the matter to the agency suspending or debarring official.

(e) The HCA should recommend or direct an administrative or contractual remedy commensurate

with the severity and effect of the violation.

(f) If the HCA determines that urgent and compelling circumstances justify an award, or award is

otherwise in the interests of the Government, the HCA, in accordance with agency procedures, may

authorize the contracting officer to award the contract or execute the contract modification after

notifying the agency head.

(g) The HCA may delegate his or her authority under this subsection to an individual at least one

organizational level above the contracting officer and of General Officer, Flag, Senior Executive

Service, or equivalent rank.

3.104-8 Criminal and civil penalties, and further administrative remedies.

Criminal and civil penalties, and administrative remedies, may apply to conduct that violates 41

U.S.C. chapter 21 (see 3.104-3). See 33.102(f) for special rules regarding bid protests. See 3.104-7

for administrative remedies relating to contracts.

(a) An official who knowingly fails to comply with the requirements of 3.104-3 is subject to the

penalties and administrative action set forth in 41 U.S.C. 2105.

(b) An offeror who engages in employment discussion with an official subject to the restrictions of

3.104-3, knowing that the official has not complied with 3.104-3(c)(1), is subject to the criminal,

civil, or administrative penalties set forth in 41 U.S.C. 2105.

(c) An official who refuses to terminate employment discussions (see 3.104-5) may be subject to

agency administrative actions under 5 CFR 2635.604(d) if the official’s disqualification from

participation in a particular procurement interferes substantially with the individual’s ability to

perform assigned duties.

3.104-9 Contract clauses.

In solicitations and contracts that exceed the simplified acquisition threshold, other than those for

commercial products or commercial services, insert the clauses at—

(a) 52.203-8, Cancellation, Rescission, and Recovery of Funds for Illegal or Improper Activity; and

(b) 52.203-10, Price or Fee Adjustment for Illegal or Improper Activity.
Subpart 3.2 - Contractor Gratuities to Government

Personnel

3.201 Applicability.

This subpart applies to all executive agencies, except that coverage concerning exemplary damages

applies only to the Department of Defense (10 U.S.C. 4651).

3.202 Contract clause.

The contracting officer shall insert the clause at 52.203-3, Gratuities, in solicitations and contracts

with a value exceeding the simplified acquisition threshold, except those for personal services and

those between military departments or defense agencies and foreign governments that do not

obligate any funds appropriated to the Department of Defense.

3.203 Reporting suspected violations of the Gratuities clause.

Agency personnel shall report suspected violations of the Gratuities clause to the contracting officer

or other designated official in accordance with agency procedures. The agency reporting procedures

shall be published as an implementation of this section 3.203 and shall clearly specify-

(a) What to report and how to report it; and

(b) The channels through which reports must pass, including the function and authority of each

official designated to review them.

3.204 Treatment of violations.

(a) Before taking any action against a contractor, the agency head or a designee shall determine,

after notice and hearing under agency procedures, whether the contractor, its agent, or another

representative, under a contract containing the Gratuities clause-

(1) Offered or gave a gratuity (e.g., an entertainment or gift) to an officer, official, or employee of the

Government; and

(2) Intended by the gratuity to obtain a contract or favorable treatment under a contract (intent

generally must be inferred).

(b) Agency procedures shall afford the contractor an opportunity to appear with counsel, submit

documentary evidence, present witnesses, and confront any person the agency presents. The

procedures should be as informal as practicable, consistent with principles of fundamental fairness.

(c) When the agency head or designee determines that a violation has occurred, the Government

may-

(1) Terminate the contractor’s right to proceed;
(2) Initiate debarment or suspension measures as set forth in subpart 9.4; and

(3) Assess exemplary damages, if the contract uses money appropriated to the Department of

Defense.

Subpart 3.3 - Reports of Suspected Antitrust Violations

3.301 General.

(a) Practices that eliminate competition or restrain trade usually lead to excessive prices and may

warrant criminal, civil, or administrative action against the participants. Examples of anticompetitive

practices are collusive bidding, follow-the-leader pricing, rotated low bids, collusive price estimating

systems, and sharing of the business.

(b) Contracting personnel are an important potential source of investigative leads for antitrust

enforcement and should therefore be sensitive to indications of unlawful behavior by offerors and

contractors. Agency personnel shall report, in accordance with agency regulations, evidence of

suspected antitrust violations in acquisitions for possible referral to-

(1) The Attorney General under 3.303; and

(2) The agency office responsible for contractor debarment and suspension under subpart 9.4.

3.302 Definitions.

As used in this subpartIdentical bids means bids for the same line item that are determined to be identical as to unit price

or total line item amount, with or without the application of evaluation factors (e.g., discount or

transportation cost).

3.303 Reporting suspected antitrust violations.

(a) Agencies are required by 41 U.S.C.3707 and 10 U.S.C. 3307 to report to the Attorney General

any bids or proposals that evidence a violation of the antitrust laws. These reports are in addition to

those required by subpart 9.4.

(b) The antitrust laws are intended to ensure that markets operate competitively. Any agreement or

mutual understanding among competing firms that restrains the natural operation of market forces

is suspect. Paragraph (c) of this section identifies behavior patterns that are often associated with

antitrust violations. Activities meeting the descriptions in paragraph (c) are not necessarily

improper, but they are sufficiently questionable to warrant notifying the appropriate authorities, in

accordance with agency procedures.

(c) Practices or events that may evidence violations of the antitrust laws include-

(1) The existence of an "industry price list" or "price agreement" to which contractors refer in
formulating their offers;

(2) A sudden change from competitive bidding to identical bidding;

(3) Simultaneous price increases or follow-the-leader pricing;

(4) Rotation of bids or proposals, so that each competitor takes a turn in sequence as low bidder, or

so that certain competitors bid low only on some sizes of contracts and high on other sizes;

(5) Division of the market, so that certain competitors bid low only for contracts awarded by certain

agencies, or for contracts in certain geographical areas, or on certain products, and bid high on all

other jobs;

(6) Establishment by competitors of a collusive price estimating system;

(7) The filing of a joint bid by two or more competitors when at least one of the competitors has

sufficient technical capability and productive capacity for contract performance;

(8) Any incidents suggesting direct collusion among competitors, such as the appearance of identical

calculation or spelling errors in two or more competitive offers or the submission by one firm of

offers for other firms; and

(9) Assertions by the employees, former employees, or competitors of offerors, that an agreement to

restrain trade exists.

(d) Identical bids shall be reported under this section if the agency has some reason to believe that

the bids resulted from collusion.

(e) For offers from foreign contractors for contracts to be performed outside the United States and

its outlying areas, contracting officers may refer suspected collusive offers to the authorities of the

foreign government concerned for appropriate action.

(f) Agency reports shall be addressed to theAttorney General

U.S. Department of Justice

Washington DC 20530

Attention: Assistant Attorney General

Antitrust Division

and shall include-

(1) A brief statement describing the suspected practice and the reason for the suspicion; and

(2) The name, address, and telephone number of an individual in the agency who can be contacted

for further information.

(g) Questions concerning this reporting requirement may be communicated by telephone directly to
the Office of the Assistant Attorney General, Antitrust Division.

Subpart 3.4 - Contingent Fees

3.400 Scope of subpart.

This subpart prescribes policies and procedures that restrict contingent fee arrangements for

soliciting or obtaining Government contracts to those permitted by 10 U.S.C. 3321(b)(1) and 41

U.S.C.3901.

3.401 Definitions.

As used in this subpartBona fide agency means an established commercial or selling agency, maintained by a contractor for

the purpose of securing business, that neither exerts nor proposes to exert improper influence to

solicit or obtain Government contracts nor holds itself out as being able to obtain any Government

contract or contracts through improper influence.

Bona fide employee means a person, employed by a contractor and subject to the contractor’s

supervision and control as to time, place, and manner of performance, who neither exerts nor

proposes to exert improper influence to solicit or obtain Government contracts nor holds out as

being able to obtain any Government contract or contracts through improper influence.

Contingent fee means any commission, percentage, brokerage, or other fee that is contingent upon

the success that a person or concern has in securing a Government contract.

Improper influence means any influence that induces or tends to induce a Government employee or

officer to give consideration or to act regarding a Government contract on any basis other than the

merits of the matter.

3.402 Statutory requirements.

Contractors’ arrangements to pay contingent fees for soliciting or obtaining Government contracts

have long been considered contrary to public policy because such arrangements may lead to

attempted or actual exercise of improper influence. In 10 U.S.C. 3321(b) and 41 U.S.C.3901,

Congress affirmed this public policy but permitted certain exceptions. These statutes-

(a) Require in every negotiated contract a warranty by the contractor against contingent fees;

(b) Permit, as an exception to the warranty, contingent fee arrangements between contractors and

bona fide employees or bona fide agencies; and

(c) Provide that, for breach or violation of the warranty by the contractor, the Government may

annul the contract without liability or deduct from the contract price or consideration, or otherwise

recover, the full amount of the contingent fee.
3.403 Applicability.

This subpart applies to all contracts. Statutory requirements for negotiated contracts are, as a

matter of policy, extended to sealed bid contracts.

3.404 Contract clause.

The contracting officer shall insert the clause at 52.203-5, Covenant Against Contingent Fees, in all

solicitations and contracts exceeding the simplified acquisition threshold, other than those for

commercial products or commercial services (see parts 2 and 12).

3.405 Misrepresentations or violations of the Covenant Against Contingent

Fees.

(a) Government personnel who suspect or have evidence of attempted or actual exercise of improper

influence, misrepresentation of a contingent fee arrangement, or other violation of the Covenant

Against Contingent Fees shall report the matter promptly to the contracting officer or appropriate

higher authority in accordance with agency procedures.

(b) When there is specific evidence or other reasonable basis to suspect one or more of the violations

in paragraph (a) of this section, the chief of the contracting office shall review the facts and, if

appropriate, take or direct one or more of the following, or other, actions:

(1) If before award, reject the bid or proposal.

(2) If after award, enforce the Government’s right to annul the contract or to recover the fee.

(3) Initiate suspension or debarment action under subpart 9.4.

(4) Refer suspected fraudulent or criminal matters to the Department of Justice, as prescribed in

agency regulations.

3.406 Records.

For enforcement purposes, agencies shall preserve any specific evidence of one or more of the

violations in 3.405(a), together with all other pertinent data, including a record of actions taken.

Contracting offices shall not retire or destroy these records until it is certain that they are no longer

needed for enforcement purposes. If the original record is maintained in a central file, a copy must

be retained in the contract file.

Subpart 3.5 - Other Improper Business Practices

3.501 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.

Subpart 3.6 - Contracts with Government Employees or

Organizations Owned or Controlled by Them

3.601 Policy.

(a) Except as specified in 3.602, a contracting officer shall not knowingly award a contract to a

Government employee or to a business concern or other organization owned or substantially owned

or controlled by one or more Government employees. This policy is intended to avoid any conflict of

interest that might arise between the employees’ interests and their Government duties, and to

avoid the appearance of favoritism or preferential treatment by the Government toward its

employees.

(b) For purposes of this subpart, special Government employees (as defined in 18 U.S.C.202)

performing services as experts, advisors, or consultants, or as members of advisory committees, are

not considered Government employees unless-

(1) The contract arises directly out of the individual’s activity as a special Government employee;

(2) In the individual’s capacity as a special Government employee, the individual is in a position to

influence the award of the contract; or

(3) Another conflict of interest is determined to exist.

3.602 Exceptions.

The agency head, or a designee not below the level of the head of the contracting activity, may

authorize an exception to the policy in 3.601 only if there is a most compelling reason to do so, such

as when the Government’s needs cannot reasonably be otherwise met.
3.603 Responsibilities of the contracting officer.

(a) Before awarding a contract, the contracting officer shall obtain an authorization under 3.602 if-

(1) The contracting officer knows, or has reason to believe, that a prospective contractor is one to

which award is otherwise prohibited under 3.601; and

(2) There is a most compelling reason to make an award to that prospective contractor.

(b) The contracting officer shall comply with the requirements and guidance in subpart 9.5 before

awarding a contract to an organization owned or substantially owned or controlled by Government

employees.

Subpart 3.7 - Voiding and Rescinding Contracts

3.700 Scope of subpart.

(a) This subpart prescribes Governmentwide policies and procedures for exercising discretionary

authority to declare void and rescind contracts in relation to which-

(1) There has been a final conviction for bribery, conflict of interest, disclosure or receipt of

contractor bid or proposal information or source selection information in exchange for a thing of

value or to give anyone a competitive advantage in the award of a Federal agency procurement

contract, or similar misconduct; or

(2) There has been an agency head determination that contractor bid or proposal information or

source selection information has been disclosed or received in exchange for a thing of value, or for

the purpose of obtaining or giving anyone a competitive advantage in the award of a Federal agency

procurement contract.

(b) This subpart does not prescribe policies or procedures for, or govern the exercise of, any other

remedy available to the Government with respect to such contracts, including but not limited to, the

common law right of avoidance, rescission, or cancellation.

3.701 Purpose.

This subpart provides-

(a) An administrative remedy with respect to contracts in relation to which there has been-

(1) A final conviction for bribery, conflict of interest, disclosure or receipt of contractor bid or

proposal information or source selection information in exchange for a thing of value or to give

anyone a competitive advantage in the award of a Federal agency procurement contract, or similar

misconduct; or

(2) An agency head determination that contractor bid or proposal information or source selection

information has been disclosed or received in exchange for a thing of value, or for the purpose of

obtaining or giving anyone a competitive advantage in the award of a Federal agency procurement
contract; and

(b) A means to deter similar misconduct in the future by those who are involved in the award,

performance, and administration of Government contracts.

3.702 Definition.

Final conviction means a conviction, whether entered on a verdict or plea, including a plea of nolo

contendere, for which a sentence has been imposed.

3.703 Authority.

(a) Section 1(e) of Public Law 87-849, 18 U.S.C.218 ("the Act"), empowers the President or the heads

of executive agencies acting under regulations prescribed by the President, to declare void and

rescind contracts and other transactions enumerated in the Act, in relation to which there has been

a final conviction for bribery, conflict of interest, or any other violation of Chapter 11 of Title 18 of

the United States Code (18 U.S.C.201-224). Executive Order 12448, November 4,1983, delegates the

President’s authority under the Act to the heads of the executive agencies and military departments.

(b) 41 U.S.C. 2105(c) requires a Federal agency, upon receiving information that a contractor or a

person has violated 41 U.S.C. 2102, to consider rescission of a contract with respect to which-

(1) The contractor or someone acting for the contractor has been convicted for an offense

punishable under 41 U.S.C. 2105(a); or

(2) The head of the agency, or designee, has determined, based upon a preponderance of the

evidence, that the contractor or someone acting for the contractor has engaged in conduct

constituting such an offense.

3.704 Policy.

(a) In cases in which there is a final conviction for any violation of 18 U.S.C.201-224 involving or

relating to contracts awarded by an agency, the agency head or designee, shall consider the facts

available and, if appropriate, may declare void and rescind contracts, and recover the amounts

expended and property transferred by the agency in accordance with the policies and procedures of

this subpart.

(b) Since a final conviction under 18 U.S.C.201-224 relating to a contract also may justify the

conclusion that the party involved is not presently responsible, the agency should consider initiating

debarment proceedings in accordance with subpart 9.4, Debarment, Suspension, and Ineligibility, if

debarment has not been initiated, or is not in effect at the time the final conviction is entered.

(c) If there is a final conviction for an offense punishable under 41 U.S.C. 2105, or if the head of the

agency, or designee, has determined, based upon a preponderance of the evidence, that the

contractor or someone acting for the contractor has engaged in conduct constituting such an

offense, then the head of the contracting activity shall consider, in addition to any other penalty

prescribed by law or regulation-
(1) Declaring void and rescinding contracts, as appropriate, and recovering the amounts expended

under the contracts by using the procedures at 3.705 (see 3.104-7); and

(2) Recommending the initiation of suspension or debarment proceedings in accordance with

subpart 9.4.

3.705 Procedures.

(a) Reporting. The facts concerning any final conviction for any violation of 18 U.S.C.201-224

involving or relating to agency contracts shall be reported promptly to the agency head or designee

for that official’s consideration. The agency head or designee shall promptly notify the Civil Division,

Department of Justice, that the action is being considered under this subpart.

(b) Decision. Following an assessment of the facts, the agency head or designee may declare void

and rescind contracts with respect to which a final conviction has been entered, and recover the

amounts expended and the property transferred by the agency under the terms of the contracts

involved.

(c) Decision-making process. Agency procedures governing the voiding and rescinding decisionmaking process shall be as informal as practicable, consistent with the principles of fundamental

fairness. As a minimum, however, agencies shall provide the following:

(1) A notice of proposed action to declare void and rescind the contract shall be made in writing and

sent by certified mail, return receipt requested.

(2) A thirty calendar day period after receipt of the notice, for the contractor to submit pertinent

information before any final decision is made.

(3) Upon request made within the period for submission of pertinent information, an opportunity

shall be afforded for a hearing at which witnesses may be presented, and any witness the agency

presents may be confronted. However, no inquiry shall be made regarding the validity of a

conviction.

(4) If the agency head or designee decides to declare void and rescind the contracts involved, that

official shall issue a written decision which-

(i) States that determination;

(ii) Reflects consideration of the fair value of any tangible benefits received and retained by the

agency; and

(iii) States the amount due and the property to be returned to the agency.

(d) Notice of proposed action. The notice of proposed action, as a minimum shall-

(1) Advise that consideration is being given to declaring void and rescinding contracts awarded by

the agency, and recovering the amounts expended and property transferred therefor, under the

provisions of 18 U.S.C.218;

(2) Specifically identify the contracts affected by the action;

(3) Specifically identify the offense or final conviction on which the action is based;
(4) State the amounts expended and property transferred under each of the contracts involved, and

the money and the property demanded to be returned;

(5) Identify any tangible benefits received and retained by the agency under the contract, and the

value of those benefits, as calculated by the agency;

(6) Advise that pertinent information may be submitted within 30 calendar days after receipt of the

notice, and that, if requested within that time, a hearing shall be held at which witnesses may be

presented and any witness the agency presents may be confronted; and

(7) Advise that action shall be taken only after the agency head or designee issues a final written

decision on the proposed action.

(e) Final agency decision. The final agency decision shall be based on the information available to

the agency head or designee, including any pertinent information submitted or, if a hearing was

held, presented at the hearing. If the agency decision declares void and rescinds the contract, the

final decision shall specify the amounts due and property to be returned to the agency, and reflect

consideration of the fair value of any tangible benefits received and retained by the agency. Notice

of the decision shall be sent promptly by certified mail, return receipt requested. Rescission of

contracts under the authority of the Act and demand for recovery of the amounts expended and

property transferred therefor, is not a claim within the meaning of 41 U.S.C. chapter 71, Contract

Disputes, or part 32. Therefore, the procedures required by the statute and the FAR for the

issuance of a final contracting officer decision are not applicable to final agency decisions under this

subpart, and shall not be followed.

Subpart 3.8 - Limitations on the Payment of Funds to

Influence Federal Transactions

3.800 Scope of subpart.

This subpart prescribes policies and procedures implementing 31 U.S.C. 1352, "Limitation on use of

appropriated funds to influence certain Federal contracting and financial transactions."

3.801 Definitions.

As used in this subpartAgency means "executive agency" as defined in 2.101.

Covered Federal action means any of the following actions:

(1) Awarding any Federal contract.

(2) Making any Federal grant.

(3) Making any Federal loan.

(4) Entering into any cooperative agreement.
(5) Extending, continuing, renewing, amending, or modifying any Federal contract, grant, loan, or

cooperative agreement.

Indian tribe and "tribal organization" have the meaning provided in section 4 of the Indian SelfDetermination and Education Assistance Act (25 U.S.C.450b) and include Alaskan Natives.

Influencing or attempting to influence means making, with the intent to influence, any

communication to or appearance before an officer or employee of any agency, a Member of

Congress, an officer or employee of Congress, or an employee of a Member of Congress in

connection with any covered Federal action.

Local government means a unit of government in a State and, if chartered, established, or otherwise

recognized by a State for the performance of a governmental duty, including a local public authority,

a special district, an intrastate district, a council of governments, a sponsor group representative

organization, and any other instrumentality of a local government.

Officer or employee of an agency includes the following individuals who are employed by an agency:

(1) An individual who is appointed to a position in the Government under Title 5, United States Code,

including a position under a temporary appointment.

(2) A member of the uniformed services, as defined in subsection 101(3), Title 37, United States

Code.

(3) A special Government employee, as defined in section 202, Title 18, United States Code.

(4) An individual who is a member of a Federal advisory committee, as defined by the Federal

Advisory Committee Act, Title 5, United States Code, appendix 2.

Person means an individual, corporation, company, association, authority, firm, partnership, society,

State, and local government, regardless of whether such entity is operated for profit or not for profit.

This term excludes an Indian tribe, tribal organization, or any other Indian organization eligible to

receive Federal contracts, grants, cooperative agreements, or loans from an agency, but only with

respect to expenditures by such tribe or organization that are made for purposes specified in

paragraph 3.802(a) and are permitted by other Federal law.

Reasonable compensation means, with respect to a regularly employed officer or employee of any

person, compensation that is consistent with the normal compensation for such officer or employee

for work that is not furnished to, not funded by, or not furnished in cooperation with the Federal

Government.

Reasonable payment means, with respect to professional and other technical services, a payment in

an amount that is consistent with the amount normally paid for such services in the private sector.

Recipient includes the contractor and all subcontractors. This term excludes an Indian tribe, tribal

organization, or any other Indian organization eligible to receive Federal contracts, grants,

cooperative agreements, or loans from an agency, but only with respect to expenditures by such

tribe or organization that are made for purposes specified in paragraph 3.802(a) and are permitted

by other Federal law.

Regularly employed means, with respect to an officer or employee of a person requesting or

receiving a Federal contract, an officer or employee who is employed by such person for at least 130

working days within 1 year immediately preceding the date of the submission that initiates agency
consideration of such person for receipt of such contract. An officer or employee who is employed by

such person for less than 130 working days within 1 year immediately preceding the date of the

submission that initiates agency consideration of such person shall be considered to be regularly

employed as soon as he or she is employed by such person for 130 working days.

State means a State of the United States, the District of Columbia, an outlying area of the United

States, an agency or instrumentality of a State, and multi-State, regional, or interstate entity having

governmental duties and powers.

3.802 Statutory prohibition and requirement.

(a) 31 U.S.C.1352 prohibits a recipient of a Federal contract, grant, loan, or cooperative agreement

from using appropriated funds to pay any person for influencing or attempting to influence an officer

or employee of any agency, a Member of Congress, an officer or employee of Congress, or an

employee of a Member of Congress in connection with any covered Federal actions.

(1) For purposes of this subpart the term "appropriated funds" does not include profit or fee from a

covered Federal action.

(2) To the extent a person can demonstrate that the person has sufficient monies, other than Federal

appropriated funds, the Government shall assume that these other monies were spent for any

influencing activities that would be unallowable if paid for with Federal appropriated funds.

(b) 31 U.S.C.1352 also requires offerors to furnish a declaration consisting of both a certification

and a disclosure, with periodic updates of the disclosure after contract award. These requirements

are contained in the provision at 52.203-11, Certification and Disclosure Regarding Payments to

Influence Certain Federal Transactions, and the clause at 52.203-12, Limitation on Payments to

Influence Certain Federal Transactions.

3.803 Exceptions.

(a) The prohibition of paragraph 3.802(a) does not apply under the following conditions:

(1) Agency and legislative liaison by own employees.

(i) Payment of reasonable compensation made to an officer or employee of a person requesting or

receiving a covered Federal action if the payment is for agency and legislative liaison activities not

directly related to a covered Federal action. For purposes of this paragraph, providing any

information specifically requested by an agency or Congress is permitted at any time.

(ii) Participating with an agency in discussions that are not related to a specific solicitation for any

covered Federal action, but that concern-

(A) The qualities and characteristics (including individual demonstrations) of the person’s products

or services, conditions or terms of sale, and service capabilities; or

(B) The application or adaptation of the person’s products or services for an agency’s use.
(iii) Providing prior to formal solicitation of any covered Federal action any information not

specifically requested but necessary for an agency to make an informed decision about initiation of a

covered Federal action.

(iv) Participating in technical discussions regarding the preparation of an unsolicited proposal prior

to its official submission.

(v) Making capability presentations prior to formal solicitation of any covered Federal action when

seeking an award from an agency pursuant to the provisions of the Small Business Act, as amended

by Pub. L. 95-507, and subsequent amendments.

(2) Professional and technical services.

(i) Payment of reasonable compensation made to an officer or employee of a person requesting or

receiving a covered Federal action, if payment is for professional or technical services rendered

directly in the preparation, submission, or negotiation of any bid, proposal, or application for that

Federal action or for meeting requirements imposed by or pursuant to law as a condition for

receiving that Federal action;

(ii) Any reasonable payment to a person, other than an officer or employee of a person requesting or

receiving a covered Federal action, if the payment is for professional or technical services rendered

directly in the preparation, submission, or negotiation of any bid, proposal, or application for that

Federal action, or for meeting requirements imposed by or pursuant to law as a condition for

receiving that Federal action. Persons other than officers or employees of a person requesting or

receiving a covered Federal action include consultants and trade associations.

(iii) As used in paragraph (a)(2) of this section "professional and technical services" are limited to

advice and analysis directly applying any professional or technical discipline. For example, drafting

of a legal document accompanying a bid or proposal by a lawyer is allowable. Similarly, technical

advice provided by an engineer on the performance or operational capability of a piece of equipment

rendered directly in the negotiation of a contract is allowable. However, communications with the

intent to influence made by a professional or a technical person are not allowable under this section

unless they provide advice and analysis directly applying their professional or technical expertise

and unless the advice or analysis is rendered directly and solely in the preparation, submission or

negotiation of a covered Federal action. Thus, for example, communications with the intent to

influence made by a lawyer that do not provide legal advice or analysis directly and solely related to

the legal aspects of his or her client’s proposal, but generally advocate one proposal over another,

are not allowable under this section because the lawyer is not providing professional legal services.

Similarly, communications with the intent to influence made by an engineer providing an

engineering analysis prior to the preparation or submission of a bid or proposal are not allowable

under this section since the engineer is providing technical services but not directly in the

preparation, submission or negotiation of a covered Federal action.

(iv) Requirements imposed by or pursuant to law as a condition for receiving a covered Federal

award include those required by law or regulation and any other requirements in the actual award

documents.

(b) Only those communications and services expressly authorized by paragraph (a) of this section are

permitted.

(c) The disclosure requirements of paragraph 3.802(b) do not apply with respect to payments of

reasonable compensation made to regularly employed officers or employees of a person.
3.804 Policy.

The contracting officer shall obtain certifications and disclosures as required by the provision at

52.203-11, Certification and Disclosure Regarding Payments to Influence Certain Federal

Transactions, prior to the award of any contract exceeding $150,000.

3.805 Exemption.

The Secretary of Defense may exempt, on a case-by-case basis, a covered Federal action from the

prohibitions of this subpart whenever the Secretary determines, in writing, that such an exemption

is in the national interest. The Secretary shall transmit a copy of the exemption to Congress

immediately after making the determination.

3.806 Processing suspected violations.

The contracting officer shall report suspected violations of the requirements of 31 U.S.C.1352 in

accordance with agency procedures.

3.807 Civil penalties.

Agencies shall impose and collect civil penalties pursuant to the provisions of the Program Fraud

and Civil Remedies Act,31 U.S.C.3803 (except subsection(c)), 3804-3808, and 3812, insofar as the

provisions therein are not inconsistent with the requirements of this subpart.

3.808 Solicitation provision and contract clause.

(a) Insert the provision at 52.203-11, Certification and Disclosure Regarding Payments to Influence

Certain Federal Transactions, in solicitations expected to exceed $150,000.

(b) Insert the clause at 52.203-12, Limitation on Payments to Influence Certain Federal

Transactions, in solicitations and contracts expected to exceed $150,000.

Subpart 3.9 - Whistleblower Protections for Contractor

Employees

3.900 Scope of subpart.

This subpart implements various statutory whistleblower programs. This subpart does not

implement 10 U.S.C. 4701, which is applicable only to DoD, NASA, and the Coast Guard.

(a) 41 U.S.C. 4712 is implemented in 3.900 through 3.906. These sections do not apply to—
(1) DoD, NASA, and the Coast Guard; or

(2) Any element of the intelligence community, as defined in section 3(4) of the National Security Act

of 1947 (50 U.S.C. 3003(4)). Sections 3.900 through 3.906 do not apply to any disclosure made by an

employee of a contractor or subcontractor of an element of the intelligence community if such

disclosure—

(i) Relates to an activity of an element of the intelligence community; or

(ii) Was discovered during contract or subcontract services provided to an element of the

intelligence community.

(b) Section 743 of Division E, Title VII, of the Consolidated and Further Continuing Appropriations

Act, 2015 (Pub. L. 113–235) and its successor provisions in subsequent appropriations acts (and as

extended in continuing resolutions), is implemented in 3.909, which is applicable to all agencies.

(c) Section 3.907 of this subpart implements section 1553 of the American Recovery and

Reinvestment Act of 2009 (Pub. L. 111–5), and applies to all contracts funded in whole or in part by

that Act.

3.901 Definitions.

As used in this subpartAbuse of authority means an arbitrary and capricious exercise of authority that is inconsistent with

the mission of the executive agency concerned or the successful performance of a contract of such

agency.

Authorized official of the Department of Justice means any person responsible for the investigation,

enforcement, or prosecution of any law or regulation.

Inspector General means an Inspector General appointed under chapter 4 of title 5 of the United

States Code and any Inspector General that receives funding from, or has oversight over contracts

awarded for, or on behalf of, the executive agency concerned. This definition does not apply to

3.907.

Internal confidentiality agreement or statement means a confidentiality agreement or any other

written statement that the contractor requires any of its employees or subcontractors to sign

regarding nondisclosure of contractor information, except that it does not include confidentiality

agreements arising out of civil litigation or confidentiality agreements that contractor employees or

subcontractors sign at the behest of a Federal agency.

Subcontract means any contract as defined in subpart 2.1 entered into by a subcontractor to furnish

supplies or services for performance of a prime contract or a subcontract. It includes but is not

limited to purchase orders, and changes and modifications to purchase orders.

Subcontractor means any supplier, distributor, vendor, or firm (including a consultant) that

furnishes supplies or services to or for a prime contractor or another subcontractor.
3.902 Classified information.

41 U.S.C. 4712 does not provide any right to disclose classified information not otherwise provided

by law.

3.903 Policy.

(a)

(1) Contractors and subcontractors are prohibited from discharging, demoting, or otherwise

discriminating against an employee as a reprisal for disclosing, to any of the entities listed at

paragraph (b) of this section, information that the employee reasonably believes is—

(i) Evidence of gross mismanagement of a Federal contract;

(ii) A gross waste of Federal funds;

(iii) An abuse of authority relating to a Federal contract;

(iv) A substantial and specific danger to public health or safety; or

(v) A violation of law, rule, or regulation related to a Federal contract (including the competition for

or negotiation of a contract).

(2) A reprisal is prohibited even if it is undertaken at the request of an executive branch official,

unless the request takes the form of a non-discretionary directive and is within the authority of the

executive branch official making the request.

(b) Disclosure may be made to the following entities:

(1) A Member of Congress or a representative of a committee of Congress.

(2) An Inspector General.

(3) The Government Accountability Office.

(4) A Federal employee responsible for contract oversight or management at the relevant agency.

(5) An authorized official of the Department of Justice or other law enforcement agency.

(6) A court or grand jury.

(7) A management official or other employee of the contractor or subcontractor who has the

responsibility to investigate, discover, or address misconduct.

(c) An employee who initiates or provides evidence of contractor or subcontractor misconduct in any

judicial or administrative proceeding relating to waste, fraud, or abuse on a Federal contract shall

be deemed to have made a disclosure.
3.904 Complaints.

3.904-1 Procedures for filing complaints.

A contractor or subcontractor employee who believes that he or she has been discharged, demoted,

or otherwise discriminated against contrary to the policy in 3.903 may submit a complaint with the

Inspector General of the agency concerned. Procedures for submitting fraud, waste, abuse, and

whistleblower complaints are generally accessible on agency Office of Inspector General hotline or

whistleblower internet sites or the complainant may directly contact the cognizant Office of the

Inspector General for submission instructions. A complaint by the employee may not be brought

under 41 U.S.C. 4712 more than three years after the date on which the alleged reprisal took place.

3.904-2 Procedures for investigating complaints.

(a) Investigation of complaints will be in accordance with 41 U.S.C. 4712(b).

(b) Upon completion of the investigation, the head of the agency shall ensure that the report of

findings has been provided by the Inspector General to the head of the agency and to—

(1) The complainant and any person acting on the complainant's behalf; and

(2) The contractor and/or subcontractor alleged to have committed the violation.

(c) The complainant, contractor, and/or subcontractor shall be afforded the opportunity to submit a

written response to the report of findings to the head of the agency and the Office of Inspector

General in a time and manner that permits the agency head to take action not later than 30 days

after receiving the report, as required by 3.905–1(a).

3.905 Remedies and enforcement of orders.

3.905-1 Remedies.

(a) Agency response to Inspector General report. Not later than 30 days after receiving a report

pursuant to 3.904-2, the head of the agency shall—

(1) Determine whether sufficient basis exists to conclude that the contractor or subcontractor has

subjected the employee who submitted the complaint to a reprisal as prohibited by 3.903; and

(2) Either issue an order denying relief or take one or more of the following actions:

(i) Order the contractor or subcontractor to take affirmative action to abate the reprisal.

(ii) Order the contractor or subcontractor to reinstate the complainant employee to the position that

the person held before the reprisal, together with compensatory damages (including back pay),

employment benefits, and other terms and conditions of employment that would apply to the person

in that position if the reprisal had not been taken.
(iii) Order the contractor or subcontractor to pay the complainant employee an amount equal to the

aggregate amount of all costs and expenses (including attorneys' fees and expert witnesses' fees)

that were reasonably incurred by the complainant for, or in connection with, bringing the complaint

regarding the reprisal, as determined by the head of the agency.

(iv) Consider disciplinary or corrective action against any official of the executive agency, if

appropriate.

(b) Complainant's right to go to court.

(1) Paragraph (b)(2) of this section applies if—

(i) The head of the agency issues an order denying relief; or

(ii)

(A) The head of the agency has not issued an order—

(1) Within 210 days after the submission of the complaint; or

(2) Within 30 days after the expiration of an extension of time granted in accordance with 41 U.S.C.

4712(b)(2)(B) for the submission of the report to those stated in 3.904-2(b); and

(B) There is no showing that such delay is due to the bad faith of the complainant.

(2) If the conditions in either paragraph (b)(1)(i) or (ii) of this section are met—

(i) The complainant shall be deemed to have exhausted all administrative remedies with respect to

the complaint; and

(ii) The complainant may bring a de novo action at law or equity against the contractor or

subcontractor to seek compensatory damages and other relief available under 41 U.S.C. 4712 in the

appropriate district court of the United States, which shall have jurisdiction over such an action

without regard to the amount in controversy.

(A) Such an action shall, at the request of either party to the action, be tried by the court with a jury.

(B) An action under this authority may not be brought more than 2 years after the date on which

remedies are deemed to have been exhausted.

(c) Admissibility in evidence. An Inspector General determination and an agency head order denying

relief under this section shall be admissible in evidence in any de novo action at law or equity

brought pursuant to 41 U.S.C. 4712.

(d) No waiver. The rights and remedies provided for in 41 U.S.C. 4712 may not be waived by any

agreement, policy, form, or condition of employment.

3.905-2 Enforcement of orders.

(a) Whenever a contractor or subcontractor fails to comply with an order issued under 3.905–1(a)(2),
the head of the agency concerned shall file an action for enforcement of the order in the U.S. district

court for a district in which the reprisal was found to have occurred. In any action brought pursuant

to this authority, the court may grant appropriate relief, including injunctive relief, compensatory

and exemplary damages, and attorney fees and costs. The complainant employee upon whose behalf

an order was issued may also file such an action or join in an action filed by the head of the agency.

(b) Any person adversely affected or aggrieved by an order issued under 3.905–1(a)(2) may obtain

review of the order's conformance with 41 U.S.C. 4712 and its implementing regulations, in the U.S.

court of appeals for a circuit in which the reprisal is alleged in the order to have occurred. No

petition seeking such review may be filed more than 60 days after issuance of the order by the head

of the agency. Filing such an appeal shall not act to stay the enforcement of the order of the head of

an agency, unless a stay is specifically entered by the court.

3.906 Contract clause.

The contracting officer shall insert the clause at 52.203-17, Contractor Employee Whistleblower

Rights, in all solicitations and contracts, except solicitations and contracts of DoD, NASA, the Coast

Guard, or applicable elements of the intelligence community (see 3.900(a)).

3.907 Whistleblower Protections Under the American Recovery and

Reinvestment Act of 2009 (the Recovery Act).

3.907-1 Definitions.

As used in this sectionBoard means the Recovery Accountability and Transparency Board established by Section 1521 of

the Recovery Act.

Covered funds means any contract payment, grant payment, or other payment received by a

contractor if-

(1) The Federal Government provides any portion of the money or property that is provided,

requested, or demanded; and

(2) At least some of the funds are appropriated or otherwise made available by the Recovery Act.

Covered information means information that the employee reasonably believes is evidence of gross

mismanagement of the contract or subcontract related to covered funds, gross waste of covered

funds, a substantial and specific danger to public health or safety related to the implementation or

use of covered funds, an abuse of authority related to the implementation or use of covered funds, or

a violation of law, rule, or regulation related to an agency contract (including the competition for or

negotiation of a contract) awarded or issued relating to covered funds.

Inspector General means an Inspector General appointed under the Inspector General Act of 1978.

In the Department of Defense that is the DoD Inspector General. In the case of an executive agency

that does not have an Inspector General, the duties shall be performed by an official designated by

the head of the executive agency.
Non-Federal employer, as used in this section, means any employer that receives Recovery Act

funds, including a contractor, subcontractor, or other recipient of funds pursuant to a contract or

other agreement awarded and administered in accordance with the Federal Acquisition Regulation.

3.907-2 Policy.

Non-Federal employers are prohibited from discharging, demoting, or otherwise discriminating

against an employee as a reprisal for disclosing covered information to any of the following entities

or their representatives:

(1) The Board.

(2) An Inspector General.

(3) The Comptroller General.

(4) A member of Congress.

(5) A State or Federal regulatory or law enforcement agency.

(6) A person with supervisory authority over the employee or such other person working for the

employer who has the authority to investigate, discover, or terminate misconduct.

(7) A court or grand jury.

(8) The head of a Federal agency.

3.907-3 Procedures for filing complaints.

(a) An employee who believes that he or she has been subjected to reprisal prohibited by the

Recovery Act, Section 1553 as set forth in 3.907-2, may submit a complaint regarding the reprisal to

the Inspector General of the agency that awarded the contract.

(b) The complaint shall be signed and shall contain-

(1) The name of the contractor;

(2) The contract number, if known; if not, a description reasonably sufficient to identify the

contract(s) involved;

(3) The covered information giving rise to the disclosure;

(4) The nature of the disclosure giving rise to the discriminatory act; and

(5) The specific nature and date of the reprisal.

(c) A contracting officer who receives a complaint of reprisal of the type described in 3.907-2 shall

forward it to the Office of Inspector General and to other designated officials in accordance with

agency procedures (e.g., agency legal counsel).
3.907-4 Procedures for investigating complaints.

Investigation of complaints will be in accordance with section 1553 of the Recovery Act.

3.907-5 Access to investigative file of Inspector General.

(a) The employee alleging reprisal under this section shall have access to the investigation file of the

Inspector General, in accordance with the Privacy Act, 5 U.S.C. §552a. The investigation of the

Inspector General shall be deemed closed for the purposes of disclosure under such section when an

employee files an appeal to the agency head or a court of competent jurisdiction.

(b) In the event the employee alleging reprisal brings a civil action under section 1553(c)(3) of the

Recovery Act, the employee alleging the reprisal and the non-Federal employer shall have access to

the investigative file of the Inspector General in accordance with the Privacy Act.

(c) The Inspector General may exclude from disclosures made under 3.907-5(a) or (b)-

(1) Information protected from disclosure by a provision of law; and

(2) Any additional information the Inspector General determines disclosure of which would impede a

continuing investigation, provided that such information is disclosed once such disclosure would no

longer impede such investigation, unless the Inspector General determines that the disclosure of law

enforcement techniques, procedures, or information could reasonably be expected to risk

circumvention of the law or disclose the identity of a confidential source.

(d) An Inspector General investigating an alleged reprisal under this section may not respond to any

inquiry or disclose any information from or about any person alleging such reprisal, except in

accordance with 5 U.S.C. 552a or as required by any other applicable Federal law.

3.907-6 Remedies and enforcement authority.

(a) Burden of Proof.

(1) Disclosure as contributing factor in reprisal.

(i) An employee alleging a reprisal under this section shall be deemed to have affirmatively

established the occurrence of the reprisal if the employee demonstrates that a disclosure described

in section 3.907-2 was a contributing factor in the reprisal.

(ii) A disclosure may be demonstrated as a contributing factor in a reprisal for purposes of this

paragraph by circumstantial evidence, including-

(A) Evidence that the official undertaking the reprisal knew of the disclosure; or

(B) Evidence that the reprisal occurred within a period of time after the disclosure such that a

reasonable person could conclude that the disclosure was a contributing factor in the reprisal.

(2) Opportunity for rebuttal. The head of an agency may not find the occurrence of a reprisal with
respect to a reprisal that is affirmatively established under section 3.907-6(a)(1) if the non-Federal

employer demonstrates by clear and convincing evidence that the non-Federal employer would have

taken the action constituting the reprisal in the absence of the disclosure.

(b) No later than 30 days after receiving an Inspector General report in accordance with section

1553 of the Recovery Act, the head of the agency concerned shall determine whether there is

sufficient basis to conclude that the non-Federal employer has subjected the complainant to a

reprisal prohibited by subsection 3.907-2 and shall either issue an order denying relief in whole or in

part or shall take one or more of the following actions:

(1) Order the employer to take affirmative action to abate the reprisal.

(2) Order the employer to reinstate the person to the position that the person held before the

reprisal, together with the compensation (including back pay), compensatory damages, employment

benefits, and other terms and conditions of employment that would apply to the person in that

position if the reprisal had not been taken.

(3) Order the employer to pay the complainant an amount equal to the aggregate amount of all costs

and expenses (including attorneys’ fees and expert witnesses’ fees) that were reasonably incurred by

the complainant for, or in connection with, bringing the complaint regarding the reprisal.

(c)

(1) The complainant shall be deemed to have exhausted all administrative remedies with respect to

the complaint, and the complainant may bring a de novo action at law or equity against the employer

to seek compensatory damages and other relief available under this section in the appropriate

district court of United States, which shall have jurisdiction over such an action without regard to

the amount in controversy if-

(i) The head of an agency-

(A) Issues an order denying relief in whole or in part under paragraph (a) of this section;

(B) Has not issued an order within 210 days after the submission of a complaint in accordance with

section 1553 of the Recovery Act, or in the case of an extension of time in accordance with section

1553 of the Recovery Act, within 30 days after the expiration of the extension of time; or

(C) Decides in accordance with section 1553 of the Recovery Act not to investigate or to discontinue

an investigation; and

(ii) There is no showing that such delay or decision is due to the bad faith of the complainant.

(2) Such an action shall, at the request of either party to the action, be tried by the court with a jury.

(d) Whenever an employer fails to comply with an order issued under this section, the head of the

agency shall request the Department of Justice to file an action for enforcement of such order in the

United States district court for a district in which the reprisal was found to have occurred. In any

action brought under this section, the court may grant appropriate relief, including injunctive relief,

compensatory and exemplary damages, and attorneys fees and costs.

(e) Any person adversely affected or aggrieved by an order issued under paragraph (b) of this

subsection may obtain review of the order’s conformance with the law, and this section, in the
United States Court of Appeals for a circuit in which the reprisal is alleged in the order to have

occurred. No petition seeking such review may be filed more than 60 days after issuance of the

order by the head of the agency.

3.907-7 Contract clause.

Use the clause at 52.203-15, Whistleblower Protections Under the American Recovery and

Reinvestment Act of 2009, in all solicitations and contracts funded in whole or in part with Recovery

Act funds.

3.908 [Reserved]

3.909 Prohibition on providing funds to an entity that requires certain

internal confidentiality agreements or statements.

3.909-1 Prohibition.

(a) The Government is prohibited from using fiscal year 2015 and subsequent fiscal year funds for a

contract with an entity that requires employees or subcontractors of such entity seeking to report

waste, fraud, or abuse to sign internal confidentiality agreements or statements prohibiting or

otherwise restricting such employees or subcontractors from lawfully reporting such waste, fraud, or

abuse to a designated investigative or law enforcement representative of a Federal department or

agency authorized to receive such information. See section 743 of Division E, Title VII, of the

Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113-235) and its successor

provisions in subsequent appropriations acts (and as extended in continuing resolutions.)

(b) The prohibition in paragraph (a) of this section does not contravene requirements applicable to

Standard Form 312 (Classified Information Nondisclosure Agreement), Form 4414 (Sensitive

Compartmented Information Nondisclosure Agreement), or any other form issued by a Federal

department or agency governing the nondisclosure of classified information.

3.909-2 Representation by the offeror.

(a) In order to be eligible for contract award, an offeror must represent that it will not require its

employees or subcontractors to sign internal confidentiality agreements or statements prohibiting or

otherwise restricting such employees or subcontractors from lawfully reporting waste, fraud, or

abuse related to the performance of a Government contract to a designated investigative or law

enforcement representative of a Federal department or agency authorized to receive such

information (e.g., agency Office of the Inspector General). Any offeror that does not so represent is

ineligible for award of a contract.

(b) The contracting officer may rely on an offeror's representation unless the contracting officer has

reason to question the representation.
3.909-3 Solicitation provision and contract clause.

When using funding subject to the prohibitions in 3.909-1(a), the contracting officer shall-

(a)

(1) Include the provision at 52.203-18, Prohibition on Contracting with Entities that Require Certain

Internal Confidentiality Agreements or Statements-Representation, in all solicitations, except as

provided in paragraph (a)(2) of this section; and

(2) Do not insert the provision in solicitations for a personal services contract with an individual if

the services are to be performed entirely by the individual, rather than by an employee of the

contractor or a subcontractor.

(b)

(1) Include the clause at 52.203-19, Prohibition on Requiring Certain Internal Confidentiality

Agreements or Statements, in all solicitations and resultant contracts, other than personal services

contracts with individuals.

(2) Modify existing contracts, other than personal services contracts with individuals, to include the

clause before obligating FY 2015 or subsequent FY funds that are subject to the same prohibition on

internal confidentiality agreements or statements.

Subpart 3.10 - Contractor Code of Business Ethics and

Conduct

3.1000 Scope of subpart.

This subpart-

(a) Implements 41 U.S.C. 3509, Notification of Violations of Federal Criminal Law or Overpayments;

and

(b) Prescribes policies and procedures for the establishment of contractor codes of business ethics

and conduct, and display of agency Office of Inspector General (OIG) fraud hotline posters.

3.1001 Definitions.

As used in this subpartSubcontract means any contract entered into by a subcontractor to furnish supplies or services for

performance of a prime contract or a subcontract.

Subcontractor means any supplier, distributor, vendor, or firm that furnished supplies or services to

or for a prime contractor or another subcontractor.
United States means the 50 States, the District of Columbia, and outlying areas.

3.1002 Policy.

(a) Government contractors must conduct themselves with the highest degree of integrity and

honesty.

(b) Contractors should have a written code of business ethics and conduct. To promote compliance

with such code of business ethics and conduct, contractors should have an employee business ethics

and compliance training program and an internal control system that-

(1) Are suitable to the size of the company and extent of its involvement in Government contracting;

(2) Facilitate timely discovery and disclosure of improper conduct in connection with Government

contracts; and

(3) Ensure corrective measures are promptly instituted and carried out.

3.1003 Requirements.

(a) Contractor requirements.

(1) Although the policy at 3.1002 applies as guidance to all Government contractors, the contractual

requirements set forth in the clauses at 52.203-13, Contractor Code of Business Ethics and Conduct,

and 52.203-14, Display of Hotline Poster(s), are mandatory if the contracts meet the conditions

specified in the clause prescriptions at 3.1004.

(2) Whether or not the clause at 52.203-13 is applicable, a contractor may be suspended and/or

debarred for knowing failure by a principal to timely disclose to the Government, in connection with

the award, performance, or closeout of a Government contract performed by the contractor or a

subcontract awarded thereunder, credible evidence of a violation of Federal criminal law involving

fraud, conflict of interest, bribery, or gratuity violations found in Title 18 of the United States Code

or a violation of the civil False Claims Act. Knowing failure to timely disclose credible evidence of

any of the above violations remains a cause for suspension and/or debarment until 3 years after final

payment on a contract (see 9.406-2(b)(1)(vi) and 9.407-2(a)(8)).

(3) The Payment clauses at FAR 52.212-4(i)(5), 52.232-25(d), 52.232-26(c), and 52.232-27(l) require

that, if the contractor becomes aware that the Government has overpaid on a contract financing or

invoice payment, the contractor shall remit the overpayment amount to the Government. A

contractor may be suspended and/or debarred for knowing failure by a principal to timely disclose

credible evidence of a significant overpayment, other than overpayments resulting from contract

financing payments as defined in 32.001 (see 9.406-2(b)(1)(vi) and 9.407-2(a)(8)).

(b) Notification of possible contractor violation. If the contracting officer is notified of possible

contractor violation of Federal criminal law involving fraud, conflict of interest, bribery, or gratuity

violations found in Title 18 U.S.C.; or a violation of the civil False Claims Act, the contracting officer

shall-

(1) Coordinate the matter with the agency Office of the Inspector General; or
(2) Take action in accordance with agency procedures.

(c) Fraud Hotline Poster.

(1) Agency OIGs are responsible for determining the need for, and content of, their respective

agency OIG fraud hotline poster(s).

(2) When requested by the Department of Homeland Security, agencies shall ensure that contracts

funded with disaster assistance funds require display of any fraud hotline poster applicable to the

specific contract. As established by the agency OIG, such posters may be displayed in lieu of, or in

addition to, the agency’s standard poster.

3.1004 Contract clauses.

(a) Insert the clause at FAR 52.203-13, Contractor Code of Business Ethics and Conduct, in

solicitations and contracts if the value of the contract is expected to exceed $6 million and the

performance period is 120 days or more.

(b)

(1) Unless the contract is for the acquisition of a commercial product or commercial service or will

be performed entirely outside the United States, insert the clause at 52.203-14, Display of Hotline

Poster(s), if–

(i) The contract exceeds $6 million or a lesser amount established by the agency; and

(ii)

(A) The agency has a fraud hotline poster; or

(B) The contract is funded with disaster assistance funds.

(2) In paragraph (b)(3) of the clause, the contracting officer shall–

(i) Identify the applicable posters; and

(ii) Insert the website link(s) or other contact information for obtaining the agency and/or

Department of Homeland Security poster.

(3) In paragraph (d) of the clause, if the agency has established policies and procedures for display

of the OIG fraud hotline poster at a lesser amount, the contracting officer shall replace " $6 million "

with the lesser amount that the agency has established.

Subpart 3.11 - Preventing Personal Conflicts of Interest for

Contractor Employees Performing Acquisition Functions
3.1100 Scope of subpart.

This subpart implements policy on personal conflicts of interest by employees of Government

contractors as required by 41 U.S.C. 2303.

3.1101 Definitions.

As used in this subpartAcquisition function closely associated with inherently governmental functions means supporting or

providing advice or recommendations with regard to the following activities of a Federal agency:

(1) Planning acquisitions.

(2) Determining what supplies or services are to be acquired by the Government, including

developing statements of work.

(3) Developing or approving any contractual documents, to include documents defining

requirements, incentive plans, and evaluation criteria.

(4) Evaluating contract proposals.

(5) Awarding Government contracts.

(6) Administering contracts (including ordering changes or giving technical direction in contract

performance or contract quantities, evaluating contractor performance, and accepting or rejecting

contractor products or services).

(7) Terminating contracts.

(8) Determining whether contract costs are reasonable, allocable, and allowable.

(a) Covered employee means an individual who performs an acquisition function closely associated

with inherently governmental functions and is-

(1) An employee of the contractor; or

(2) A subcontractor that is a self-employed individual treated as a covered employee of the

contractor because there is no employer to whom such an individual could submit the required

disclosures.

Personal conflict of interest means a situation in which a covered employee has a financial interest,

personal activity, or relationship that could impair the employee’s ability to act impartially and in the

best interest of the Government when performing under the contract. (A de minimis interest that

would not "impair the employee’s ability to act impartially and in the best interest of the

Government" is not covered under this definition.)

(1) Among the sources of personal conflicts of interest are-

(i) Financial interests of the covered employee, of close family members, or of other members of the

covered employee's household;
(ii) Other employment or financial relationships (including seeking or negotiating for prospective

employment or business); and

(iii) Gifts, including travel.

(2) For example, financial interests referred to in paragraph (1) of this definition may arise from-

(i) Compensation, including wages, salaries, commissions, professional fees, or fees for business

referrals;

(ii) Consulting relationships (including commercial and professional consulting and service

arrangements, scientific and technical advisory board memberships, or serving as an expert witness

in litigation);

(iii) Services provided in exchange for honorariums or travel expense reimbursements;

(iv) Research funding or other forms of research support;

(v) Investment in the form of stock or bond ownership or partnership interest (excluding diversified

mutual fund investments);

(vi) Real estate investments;

(vii) Patents, copyrights, and other intellectual property interests; or

(viii) Business ownership and investment interests.

3.1102 Policy.

The Government’s policy is to require contractors to-

(a) Identify and prevent personal conflicts of interest of their covered employees; and

(b) Prohibit covered employees who have access to nonpublic information by reason of performance

on a Government contract from using such information for personal gain.

3.1103 Procedures.

(a) By use of the contract clause at 52.203-16, as prescribed at 3.1106, the contracting officer shall

require each contractor whose employees perform acquisition functions closely associated with

inherently Government functions to-

(1) Have procedures in place to screen covered employees for potential personal conflicts of interest

by-

(i) Obtaining and maintaining from each covered employee, when the employee is initially assigned

to the task under the contract, a disclosure of interests that might be affected by the task to which

the employee has been assigned, as follows:

(A) Financial interests of the covered employee, of close family members, or of other members of the

covered employee’s household.
(B) Other employment or financial relationships of the covered employee (including seeking or

negotiating for prospective employment or business).

(C) Gifts, including travel; and

(ii) Requiring each covered employee to update the disclosure statement whenever the employee’s

personal or financial circumstances change in such a way that a new personal conflict of interest

might occur because of the task the covered employee is performing.

(2) For each covered employee-

(i) Prevent personal conflicts of interest, including not assigning or allowing a covered employee to

perform any task under the contract for which the Contractor has identified a personal conflict of

interest for the employee that the Contractor or employee cannot satisfactorily prevent or mitigate

in consultation with the contracting agency;

(ii) Prohibit use of non-public information accessed through performance of a Government contract

for personal gain; and

(iii) Obtain a signed non-disclosure agreement to prohibit disclosure of non-public information

accessed through performance of a Government contract.

(3) Inform covered employees of their obligation-

(i) To disclose and prevent personal conflicts of interest;

(ii) Not to use non-public information accessed through performance of a Government contract for

personal gain; and

(iii) To avoid even the appearance of personal conflicts of interest;

(4) Maintain effective oversight to verify compliance with personal conflict-of-interest safeguards;

(5) Take appropriate disciplinary action in the case of covered employees who fail to comply with

policies established pursuant to this section; and

(6) Report to the contracting officer any personal conflict-of-interest violation by a covered employee

as soon as identified. This report shall include a description of the violation and the proposed actions

to be taken by the contractor in response to the violation, with follow-up reports of corrective

actions taken, as necessary.

(b) If a contractor reports a personal conflict-of-interest violation by a covered employee to the

contracting officer in accordance with paragraph (b)(6) of the clause at 52.203-16, Preventing

Personal Conflicts of Interest, the contracting officer shall-

(1) Review the actions taken by the contractor;

(2) Determine whether any action taken by the contractor has resolved the violation satisfactorily;

and

(3) If the contracting officer determines that the contractor has not resolved the violation

satisfactorily, take any appropriate action in consultation with agency legal counsel.
3.1104 Mitigation or waiver.

(a) In exceptional circumstances, if the contractor cannot satisfactorily prevent a personal conflict of

interest as required by paragraph (b)(2)(i) of the clause at 52.203-16, Preventing Personal Conflicts

of Interest, the contractor may submit a request, through the contracting officer, for the head of the

contracting activity to-

(1) Agree to a plan to mitigate the personal conflict of interest; or

(2) Waive the requirement to prevent personal conflicts of interest.

(b) If the head of the contracting activity determines in writing that such action is in the best

interest of the Government, the head of the contracting activity may impose conditions that provide

mitigation of a personal conflict of interest or grant a waiver.

(c) This authority shall not be redelegated.

3.1105 Violations.

If the contracting officer suspects violation by the contractor of a requirement of paragraph (b),

(c)(3), or (d) of the clause at 52.203-16, Preventing Personal Conflicts of Interest, the contracting

officer shall contact the agency legal counsel for advice and/or recommendations on a course of

action.

3.1106 Contract clause.

(a) Insert the clause at 52.203-16, Preventing Personal Conflicts of Interest, in solicitations and

contracts that-

(1) Exceed the simplified acquisition threshold; and

(2) Include a requirement for services by contractor employee(s) that involve performance of

acquisition functions closely associated with inherently governmental functions for, or on behalf of, a

Federal agency or department.

(b) If only a portion of a contract is for the performance of acquisition functions closely associated

with inherently governmental functions, then the contracting officer shall still insert the clause, but

shall limit applicability of the clause to that portion of the contract that is for the performance of

such services.

(c) Do not insert the clause in solicitations or contracts with a self-employed individual if the

acquisition functions closely associated with inherently governmental functions are to be performed

entirely by the self-employed individual, rather than an employee of the contractor.