71826 Federal Register / Vol. 76, No. 223 / Friday, November 18, 2011 / Rules and Regulations 

List of Subjects in 48 CFR Part 245 

Government procurement. 

Ynette R. Shelkin, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, 48 CFR part 245 is 

amended as follows: 

PART 245—GOVERNMENT PROPERTY 

■ 1. The authority citation for 48 CFR 

part 245 continues to read as follows: 

Authority: 41 U.S.C. 1303 and 48 CFR 

chapter 1. 

■ 2. Add section 245.104 to read as 

follows: 

245.104 Responsibility and liability for 

Government property. 

In addition to the contract types listed 

at FAR 45.104, contractors are not held 

liable for loss of Government property 

under negotiated fixed-price contracts 

awarded on a basis other than 

submission of certified cost or pricing 

data. 

■ 3. Amend section 245.107 by 

redesignating paragraphs (a) through (e) 

as paragraphs (1) through (5) and adding 

paragraph (6) to read as follows: 

245.107 Contract clauses. 

* * * * * 

(6) For negotiated fixed-price 

contracts awarded on a basis other than 

submission of certified cost or pricing 

data for which Government property is 

provided, use the clause at FAR 52.245– 

1, Government Property, without its 

Alternate I. 

[FR Doc. 2011–29416 Filed 11–17–11; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 203 and 252 

RIN 0750–AG99 

Defense Federal Acquisition 

Regulation Supplement: 

Representation Relating to 

Compensation of Former DoD Officials 

(DFARS Case 2010–D020) 

AGENCIES: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD is amending the DFARS 

to require offerors to represent whether 

former DoD officials who are employees 

of the offeror are in compliance with 

post-employment restrictions. 

DATES: Effective Date: November 18, 

2011. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Meredith Murphy, 703–602–1302. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD published a proposed rule at 76 

FR 32846 on June 6, 2011, that proposed 

adding a requirement for offerors 

submitting proposals to DoD to 

represent whether former DoD officials 

employed by the offeror are in 

compliance with post-employment 

restrictions. Four respondents submitted 

public comments on the proposed rule. 

A. Post-Employment Statutory 

Restrictions and Regulatory 

Implementation 

The principal statutory restrictions 

concerning post-Government 

employment for DoD officials after 

leaving Government employment are at 

18 U.S.C. 207 and 41 U.S.C. 2104 

(formerly 41 U.S.C. 423) and 5 CFR 

parts 2637 and 2641. 

1. FAR 3.104 implements 41 U.S.C 

2104 and 18 U.S.C. 207. 

2. DFARS 203.104 implements the 

Procurement Integrity Act for DoD. 

3. DFARS 203.171–3 implements 

section 847 of the National Defense 

Authorization Act (NDAA) for Fiscal 

Year (FY) 2008. 

B. General Accountability Office (GAO) 

Study GAO–08–485 

The Congress included a provision in 

the NDAA for FY 2007 (section 851 of 

Pub. L. 109–364) requiring the GAO to 

report on recent employment of former 

DoD officials by major defense 

contractors. In May 2008, the GAO 

issued its report, entitled ‘‘Defense 

Contracting: Post-Government 

Employment of Former DoD Officials 

Needs Greater Transparency’’ (GAO–08– 

485). The GAO found that contractors 

significantly under-reported the 

employment of former DoD officials and 

concluded that defense contractors may 

employ a substantial number of former 

DoD officials on assignments related to 

their former positions. GAO further 

concluded that greater transparency is 

needed by DoD with respect to former 

senior and acquisition executives to 

ensure compliance with applicable postemployment restrictions. The GAO 

recommended that DoD ask potential 

offerors to certify that the former DoD 

officials employed by the offeror are in 

compliance with post-employment 

restrictions when contracts are being 

awarded and that contracting officers 

consider continuing certifications 

throughout the performance of the 

contract. 

C. DFARS Rule 

This DFARS rule implements the 

recommendation of the GAO by adding 

a new representation for offerors to 

complete and provide as part of each 

proposal, including proposals for 

commercial items. DoD elected to 

employ a representation rather than a 

certification and have the representation 

submitted by offerors as part of the 

proposal process. The representation 

will be required only one time rather 

than continuously throughout contract 

performance. The provision will not be 

included in the annual representations 

and certifications. 

The solicitation provision at DFARS 

252.203–7005, entitled ‘‘Representation 

Relating to Compensation of Former 

DoD Officials,’’ is a representation that 

all of the offeror’s employees who are 

former DoD officials are in compliance 

with the post-employment restrictions 

at 18 U.S.C. 207, 41 U.S.C. 2101–2107, 

and 5 CFR parts 2637 and 2641, as well 

as FAR 3.104–2. 

II. Discussion and Analysis of the 

Public Comments 

DoD reviewed the public comments 

received in response to the proposed 

rule in the formation of the final rule. 

A discussion of the comments and the 

changes made to the rule as a result of 

those comments follows. 

A. Contractor Compliance 

Responsibility 

Comment: Two respondents noted 

that compliance with ethics rules is the 

responsibility of the covered officials, 

not the contractor employing them. 

According to the respondents, although 

contractors instruct and train employees 

to observe all post-government 

employment restrictions, contractors 

have no official compliance 

responsibility regarding employees’ 

post-government employment 

restrictions. 

Response: FAR subpart 3.10, entitled 

‘‘Contractor Code of Business Ethics and 

Conduct,’’ requires, among other things, 

that contractors exercise due diligence 

to prevent and detect criminal conduct 

and otherwise promote an 

organizational culture that encourages 

ethical conduct and a commitment to 

compliance with the law. Contractors 

must also timely disclose to the 

Government any credible evidence of a 

violation of criminal law, which would 

include, for example, a violation of 18 

U.S.C. 207 (post-Government 

employment restrictions). Accordingly, 

contractors, as employers of covered 

officials, have an affirmative compliance 

responsibility regarding employees’ 


jlentini on DSK4TPTVN1PROD with RULES3
Federal Register / Vol. 76, No. 223 / Friday, November 18, 2011 / Rules and Regulations 71827 

post-Government employment 

restrictions. Contractors must ensure 

their employees avoid engaging in 

criminal conduct while carrying out 

duties on the contractor’s behalf. Stated 

individuals’ resumes generally do not 

include every particular matter on 

which they worked. Hiring contractors 

have a duty to interview their new hires 

who formerly worked for DoD and 

screen their work experiences for 

relevant particular matters. 

Comment: Two respondents asserted 

that implementation of the proposed 

rule would require contractors to 

establish compliance systems to 

identify, track, educate, and require 

periodic certifications from employees 

and consultants across their businesses 

(rather than those specific to a contract) 

to identify former DoD covered officials. 

According to the respondents, such 

systems would require additional 

compliance mechanisms and personnel 

to design, implement, execute, test, and 

evaluate, thereby raising overhead costs 

for contractors, which could ultimately 

increase costs to the Government. 

Response: Contractors should know 

on what particular matters covered 

officials worked and already ensure 

employees are not assigned to work on 

those matters because there are current 

requirements to maintain and track this 

information. FAR subpart 3.10 requires 

contractors to be aware of employees 

who are covered officials and any 

existing prohibitions and requirements 

relating to their employment. In 

addition, when contractors hire covered 

DoD officials, DFARS 252.203–7000(b) 

requires them to determine whether the 

covered officials sought and received 

advice regarding post-employment 

restrictions on behalf of the contractor. 

This rule does not require the creation 

of new compliance systems, and 

additional costs should not be incurred. 

Comment: Two respondents asserted 

that the proposed rule would require 

contractors to certify compliance 

involving matters unrelated and 

unknown to the offeror, because the 

proposed regulation provides no 

limitation related to the contractors’ 

business and the covered officials’ other 

activities or employment. Respondents 

suggested limiting the proposed 

representation to ‘‘work related to this 

offer’’ or ‘‘activities that the official is 

expected to undertake on behalf of the 

contractor.’’ 

Response: DFARS 252.203–7000(b) 

provides ‘‘(t)he Contractor shall not 

knowingly provide compensation to a 

covered DoD official within 2 years after 

the official leaves DoD service, without 

first determining that the official has 

sought and received, or has not received 

after 30 days of seeking, a written 

opinion from the appropriate DoD ethics 

counselor regarding the applicability of 

post-employment restrictions to the 

activities that the official is expected to 

undertake on behalf of the Contractor.’’ 

It would be reasonable to include a 

similar limitation in the representation, 

e.g., ‘‘that all covered DoD officials 

employed by, or otherwise receiving 

compensation from the offeror, and who 

are expected to undertake activities on 

behalf of the offeror for any resulting 

contract, are presently in compliance 

with—* * *.’’ Appropriate revision has 

been made in the final rule to the 

DFARS provision at 252.203–7005(b). 

B. Contractor Identification of ‘‘Covered 

Officials’’ and ‘‘Particular Matters’’ 

Comment: One respondent stated that 

‘‘identifying which job applicants are 

‘covered officials’ is not trivial.’’ This 

respondent explained that ‘‘resumes are 

often tailored to the job being sought: 

Certain items are highlighted, others 

omitted entirely. Consequently, while it 

is usually simple to tell if a potential 

candidate was a ‘senior official,’ it is 

often difficult to identify if he or she 

was an ‘acquisition executive’.’’ 

Response: The term ‘‘covered DoD 

official’’ is defined in DFARS 252.203– 

7000(a) as an individual who ‘‘left DoD 

service on or after January 28, 2008,’’ 

and either ‘‘participated personally and 

substantially in an acquisition as 

defined in 41 U.S.C. 131 with a value 

in excess of $10 million’’ and who 

served in specifically highlighted 

positions or served within DoD as 

‘‘program manager, deputy program 

manager, procuring contracting officer, 

administrative contracting officer, 

source selection authority, member of 

the source selection evaluation board, or 

chief of a financial or technical 

evaluation team for a contract in an 

amount in excess of $10 million.’’ 

Contractors need to seek clarification 

with job applicants and employees as to 

whether the applicant meets the DFARS 

definition in order to ensure employees 

are in compliance with DoD postemployment restrictions. 

Comment: A respondent highlighted 

potential difficulties in identifying 

‘‘particular matters’’ on which the job 

applicant worked. The respondent 

stated that ethics opinions rarely 

identify the ‘‘particular matters’’ upon 

which the former DoD official worked 

and to which post-employment 

restrictions apply. The respondent 

concluded that failure to identify 

‘‘particular matters’’ is ‘‘a significant 

problem for individuals (and their 

employers) whose government portfolio 

was substantially broader’’ than simply 

working on one program during their 

Government career. 

Response: It is not feasible or 

practicable to expect that a Government 

ethics official list all ‘‘particular 

matters’’ for a Government employee. 

The most likely, and probably only, 

source for this type of information is the 

Government official requesting the postemployment restrictions opinion from 

the ethics official. Failure of the 

Government employee to provide a 

comprehensive list would 

inappropriately limit the scope of the 

ethics opinion to those items listed. The 

former Government official is in the best 

position to (1) recall the particular 

matters that he or she worked during his 

or her Government tenure and (2) advise 

future employers of his or her 

involvement in ‘‘particular matters’’ 

when the employer provides work 

assignments. The Code of Federal 

Regulations contains a definition of 

‘‘particular matter,’’ as well as examples 

of what a ‘‘particular matter’’ is. The 

examples provide guidance for the types 

of situations and circumstances covered 

by the term. It is unrealistic to expect a 

finite set of examples listed in the 

regulations to cover all possible 

circumstances and situations that could 

arise regarding what constitutes a 

‘‘particular matter’’. 

C. Contractor Certification ‘‘to the Best 

of Its Knowledge and Belief’’ 

Comment: A respondent stated that 

there is no generally accepted definition 

of ‘‘to the best of its knowledge or 

belief.’’ This respondent explained that 

‘‘(s)ometimes it means simply that the 

person making the representation has no 

information to the contrary and is not 

willfully refusing to see a problem. At 

other times, it has been held to imply a 

duty to investigate before making the 

representation.’’ 

Response: The standard, ‘‘to the best 

of its knowledge and belief,’’ is a 

recognized legal term of art, and one 

that has been used in numerous statutes 

over decades, e.g., The Truth in 

Negotiations Act has been in effect since 

1963. (‘‘A person required, as an offeror, 

contractor, or subcontractor, to submit 

cost or pricing data under paragraph (1) 

* * * shall be required to certify that, 

to the best of the person’s knowledge 

and belief, the cost or pricing data 

submitted are accurate, complete, and 

current.’’ (10 U.S.C. 2306a, paragraph 

(a)(2)). 

D. Consequences of the Rule 

Comment: Two respondents suggested 

that the rule may have several adverse 

effects, including deterring: (1) Small 

companies from competing for 


jlentini on DSK4TPTVN1PROD with RULES3
71828 Federal Register / Vol. 76, No. 223 / Friday, November 18, 2011 / Rules and Regulations 

Government contracts; (2) contractors 

from hiring ‘‘covered DoD officials;’’ 

and (3) Federal employees who would 

be subject to the rule from seeking 

employment with DoD. 

Response: This rule requires offerors 

to verify compliance with existing laws 

and regulations and, therefore, is 

unlikely to have the suggested deterrent 

effects unless the business was not 

otherwise ensuring compliance and/or 

did not intend to comply in the future. 

In that event, deterring non-compliance 

is consistent with the purposes 

underlying the rule. Further, to the 

extent one of the respondents was 

suggesting that small business concerns 

be exempted from the rule, such an 

exemption would substantially 

undermine its purpose of improving 

compliance, as available data indicates 

that small business concerns are likely 

to hire a large majority of ‘‘covered DoD 

officials’’ (see Regulatory Flexibility Act 

section). 

E. Relationship to Existing Statutes and 

Regulations, Including the Clinger/ 

Cohen Act Ban on New Certifications 

That Are Not Required by Law 

Comment: Two respondents 

concluded that there was no need for 

this rule because (1) the Congress 

already addressed the concerns 

underlying the GAO report by enacting 

section 847 of the NDAA for FY 2009 

(Pub. L. 110–417, enacted October 14, 

2008); (2) FAR subpart 3.10, Contractor 

Code of Business Ethics and Conduct, 

already requires contractors to monitor 

post-employment compliance with 18 

U.S.C. 207; and (3) the responsibility for 

post-employment compliance should 

rest primarily with former DoD 

employees. One of these respondents 

stated that the representation violates 

the Clinger/Cohen Act ban on new 

contractor certifications that are not 

required by law. 

Response: (1) Section 847 of the 

NDAA for FY 2008 is entitled 

‘‘Requirements for Senior Department of 

Defense Officials Seeking Employment 

with Defense Contractors.’’ The 

provision applies to defense contractors 

by prohibiting such contractors from 

knowingly providing compensation to a 

former DoD official ‘‘within two years 

after such former official leaves (DoD), 

without first determining that the 

former official has sought and received 

(or has not received after 30 days of 

seeking) a written opinion from the 

appropriate ethics counselor regarding 

the applicability of post-employment 

restrictions to the activities that the 

former official is expected to undertake 

on behalf of the contractor.’’ While there 

is some relationship to section 847, the 

representation in the rule addresses the 

broader arena of post-employment 

restrictions (see paragraph A in the 

Background section of this notice for the 

listing). Further, the prohibition against 

providing compensation (section 847) 

was implemented by adding the clause 

at DFARS 252.203–7000, Requirements 

Relating to Compensation of Former 

DoD Officials (see the interim rule at 74 

FR 2408, dated January 15, 2009, and 

the final rule at 74 FR 59913, dated 

November 19, 2009; DFARS Case 2008– 

D007). 

(2) There is some relationship to FAR 

subpart 3.10. However, the FAR policy 

(FAR 3.1002(b)) states that contractors 

‘‘should have a written code of business 

ethics and conduct’’ and ‘‘should have 

an internal control system.’’ (A 

contractor is not required to have an 

internal control system unless the 

procurement is over $5 million and it is 

not a small business concern (see FAR 

3.1004(a) and 52.203–13(c)(2)). Further, 

the proposed rule is applicable 

exclusively to DoD procurements, and it 

is narrower than FAR subpart 3.10, in 

that it is concerned exclusively with 

post-employment restrictions for former 

DoD officials. 

(3) The former DoD employee should 

be primarily responsible for his or her 

compliance with post-employment 

restrictions. However, businesses 

should support the highest ethical 

standards (see FAR 3.1002(a)) and 

should not hire former DoD officials 

who have not complied with the law or 

assign them to work on projects that are 

barred to them by the nature of their 

DoD assignments. The representation at 

DFARS 252.203–7005 in the final rule is 

intended to ensure that DoD does 

business with companies that are 

committed to the highest ethical 

standards. 

(4) The Clinger/Cohen Act prohibited 

the creation of contractor certifications 

that are not required by law. The FAR 

and DFARS regularly employ the 

distinction between a representation 

and a certification, and representations 

have regularly been deemed not subject 

to the Clinger/Cohen Act ban. 

F. Strengthen the Rule by Adding Five 

Requirements 

Comment: One respondent expressed 

support for the proposed rule, but 

suggested that it be strengthened by 

adding the following five requirements 

for— 

(1) The offeror to expressly state, 

when true, that it is compensating 

former DoD employees who have not 

received a written ethics opinion within 

the 30-day timeframe; 

(2) The DoD IG to audit annually a 

stratified random sample of contracts 

and the contractor’s list of former 

employees to determine whether 

contractors are in full compliance with 

post-employment restrictions asserted, 

whether former Government employees 

are in full compliance with postemployment restrictions, and whether 

DoD ethics officers have issued said 

written opinions within 30 days of 

being sought; 

(3) DoD to sanction contractors and 

former DoD employees identified by the 

DoD IG as having violated the 

requirements; 

(4) DoD to take appropriate action to 

ensure ethics opinions are issued within 

the 30-day timeframe; and 

(5) DoD to make public the following 

information: (a) The database of ethics 

opinions required pursuant to section 

847(b)(1); (b) the names of contractors 

and former DoD officials identified by 

the DoD IG as not being in compliance 

with the requirements of the proposed 

rule; (c) the actions taken by DoD to 

seek sanctions for each non-compliant 

contractor and former DoD official; and 

(d) what, if any, sanctions were actually 

imposed on the identified contractors 

and former DoD officials. 

Response: All of the above 

recommendations are outside the scope 

of the GAO study and this rule. 

G. Scope 

Comment: A respondent stated that 

‘‘due to its broad scope’’, 

implementation of substantial 

compliance programs is required. 

Response: Contractors should already 

have programs in place that comply 

with standards of conduct and ethics 

program requirements as described in 

FAR 3.10 and more specifically, in 

DFARS clause 252.203–7000, included 

in all DoD solicitations and contracts. 

All companies, whether large or small, 

should have knowledge of the former 

defense employees that are proposed to 

work on specific solicitations. 

H. Application to New Task or Delivery 

Orders 

Comment: One respondent stated that 

the proposed rule does not specify 

whether contracts would need to 

include the post-employment 

representation in task and delivery 

orders and proposed the rule ‘‘be 

amended to clarify that such 

representation would only be required 

at the time the umbrella indefinitedelivery, indefinite-quantity contract is 

awarded, and not for each task or 

delivery order.’’ 

Response: The final rule clarifies the 

requirement. The prescription, at 


jlentini on DSK4TPTVN1PROD with RULES3
Federal Register / Vol. 76, No. 223 / Friday, November 18, 2011 / Rules and Regulations 71829 

DFARS 203.171–4, requires the 

provision at DFARS 252.203–7005, 

Representation Relating to 

Compensation of Former DoD Officials, 

‘‘in all solicitations, including 

solicitations for task and delivery 

orders.’’ 

III. Executive Orders 12866 and 13563 

Executive Orders (E.O.s) 12866 and 

13563 direct agencies to assess all costs 

and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). E.O. 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. This is not a significant 

regulatory action and, therefore, was not 

subject to review under section 6(b) of 

E.O. 12866, Regulatory Planning and 

Review, dated September 30, 1993. This 

rule is not a major rule under 5 U.S.C. 

804. 

IV. Regulatory Flexibility Act 

A final regulatory flexibility analysis 

has been prepared consistent with the 

Regulatory Flexibility Act, 5 U.S.C. 601, 

et seq., and is summarized as follows: 

This rule is being issued in response 

to a study by the General Accountability 

Office (GAO), entitled ‘‘Defense 

Contracting: Post-Government 

Employment of Former DoD Officials 

Needs Greater Transparency’’ (GAO–08– 

485), issued in May 2008. The GAO 

found that contractors under-reported 

the employment of former DoD officials 

to the extent that the contractors 

employed almost twice as many former 

DoD officials as had been reported. The 

GAO report showed that major defense 

contractors are not currently ensuring 

that former DoD senior officials and 

acquisition executives working on 

contracts are complying with postemployment restrictions. 

The final rule requires offerors to 

submit, as part of the proposal, a 

representation that all former DoD 

officials who will be working on any 

resultant contract are in compliance 

with post-employment restrictions at 18 

U.S.C. 207, 41 U.S.C. 2101–2107, and 5 

CFR parts 2637 and 2641, as well as 

FAR 3.104–2. 

The rule requires a representation 

from all offerors responding to a DoD 

solicitation, including commercial item 

acquisitions. A ‘‘covered DoD official’’ 

is already defined in the clause at 

DFARS 252.203–7000, Requirements 

Relating to Compensation of Former 

DoD Employees. That same clause also 

implements section 847 of the National 

Defense Authorization Act for Fiscal 

Year 2008 by prohibiting any DoD 

contractor from knowingly providing 

compensation to a covered DoD official 

within two years after the official leaves 

DoD service. There is no impact on an 

offeror from this new representation 

unless the contractor has not been 

monitoring its employees who are 

former covered DoD officials to ensure 

compliance with DFARS 252.203–7000. 

No comments from small entities 

were received in response to the Federal 

Register Notice of the proposed rule, 

published June 6, 2011, at 76 FR 32846. 

However, a ‘‘think tank’’ requested the 

‘‘addition of language making it clear 

that the offeror has no duty to establish 

systems and procedures to police and 

define compliance * * *’’ No language 

has been added in response to this 

request. Companies are prohibited, 

pursuant to subsection 3 of DFARS 

203.171, entitled ‘‘Senior DoD officials 

seeking employment with defense 

contractors,’’ from ‘‘knowingly 

provid(ing) compensation to a covered 

DoD official within two years after the 

official leaves DoD service unless the 

contractor first determines that the 

official has received * * * the postemployment ethics opinion’’ pursuant 

to section 847 of the National Defense 

Authorization Act for Fiscal Year 2008 

(Pub. L. 110–181). 

In the period of 2001–2006, 1.85 

million former military and civilian 

personnel left DoD service. A ‘‘covered 

DoD official’’ is defined to include 

former DoD officials who held certain 

positions and who left DoD within the 

past two years (see DFARS 203.171–3(a) 

and 252.203–7000). The GAO found that 

the 1.85 million personnel who had left 

DoD service over a six-year period 

included only 35,192 who had served in 

the type of senior or acquisition official 

positions that made them subject to 

post-Government employment 

restrictions, if they were subsequently 

hired by defense contractors. Dividing 

35,192 by three (to reduce the six-year 

period to a two-year period), we 

estimate that 11,730 of those officials 

would have left within the last two 

years. We estimate that 7,635 of these 

former officials may accept employment 

with a defense contractor (about 65 

percent). The GAO study found that 

2,435 of these covered officials were 

employed by 52 major defense 

contractors. Of the remaining 5,200 

former officials covered by the 

Procurement Integrity Act, we estimate 

that 3,900 (75 percent) of them may 

work for small business concerns. 

There were no comments filed by the 

Chief Counsel for Advocacy of the Small 

Business Administration in response to 

the rule. 

There is no reporting, recordkeeping, 

or other compliance requirement 

associated with this rule. Offerors make 

the representation by submission of an 

offer. By the terms of the representation, 

an offeror is prohibited from submitting 

an offer if it cannot make the 

representation. In order to submit an 

offer, small entities that hire a former 

DoD official covered by the Procurement 

Integrity Act will have to check the 

compliance of such employees with 

various applicable post-employment 

restrictions. DFARS clause 252.203– 

7000, Requirements Relating to 

Compensation of Former DoD Officials, 

already requires contractors to 

determine that a covered DoD official 

has sought and received, or has not 

received after 30 days of seeking, a 

written opinion from the appropriate 

DoD ethics counselor, regarding the 

applicability of post-employment 

restrictions to the activities that the 

official is expected to undertake on 

behalf of the contractor. This 

representation of compliance does not 

impose an additional burden on the 

offeror. 

There were no known significant 

alternatives identified that would 

achieve the objectives of the rule. 

V. Paperwork Reduction Act 

The rule does not contain any 

information collection requirements that 

require the approval of the Office of 

Management and Budget under the 

Paperwork Reduction Act (44 U.S.C. 

chapter 35). 

List of Subjects in 48 CFR Parts 203 and 

252 

Government procurement. 

Ynette R. Shelkin, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, 48 CFR parts 203 and 252 

are amended as follows: 

■ 1. The authority citation for 48 CFR 

parts 203 and 252 continues to read as 

follows: 

Authority: 41 U.S.C. 1303 and 48 CFR 

chapter 1. 

PART 203—IMPROPER BUSINESS 

PRACTICES AND PERSONAL 

CONFLICTS OF INTEREST 

■ 2. Revise section 203.171–4 to read as 

follows: 


jlentini on DSK4TPTVN1PROD with RULES3
71830 Federal Register / Vol. 76, No. 223 / Friday, November 18, 2011 / Rules and Regulations 

203.171–4 Solicitation provision and 

contract clause. 

(a) Use the clause at 252.203–7000, 

Requirements Relating to Compensation 

of Former DoD Officials, in all 

solicitations and contracts. 

(b) Use the provision at 252.203–7005, 

Representation Relating to 

Compensation of Former DoD Officials, 

in all solicitations, including 

solicitations for task and delivery 

orders. 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 3. Add section 252.203–7005 to read 

as follows: 

252.203–7005 Representation Relating to 

Compensation of Former DoD Officials. 

As prescribed in 203.171–4(b), insert 

the following provision: 

REPRESENTATION RELATING TO 

COMPENSATION OF FORMER DOD 

OFFICIALS (NOV 2011) 

(a) Definition. Covered DoD official is 

defined in the clause at 252.203–7000, 

Requirements Relating to Compensation of 

Former DoD Officials. 

(b) By submission of this offer, the offeror 

represents, to the best of its knowledge and 

belief, that all covered DoD officials 

employed by or otherwise receiving 

compensation from the offeror, and who are 

expected to undertake activities on behalf of 

the offeror for any resulting contract, are 

presently in compliance with all postemployment restrictions covered by 18 

U.S.C. 207, 41 U.S.C. 2101–2107, and 5 CFR 

parts 2637 and 2641, including Federal 

Acquisition Regulation 3.104–2. 

(End of provision) 

[FR Doc. 2011–29421 Filed 11–17–11; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 242 

RIN 0750–AH41 

Defense Federal Acquisition 

Regulation Supplement: Administering 

Trafficking in Persons Regulations 

(DFARS Case 2011–D051) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD is issuing a final rule 

amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to add to the list of contract 

administration functions a requirement 

to maintain surveillance over contractor 

compliance with duties and 

responsibilities pertaining to trafficking 

in persons when they are incorporated 

in contracts. 

DATES: Effective Date: November 18, 

2011. 

FOR FURTHER INFORMATION CONTACT: 

Meredith Murphy, telephone (703) 602– 

1302. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The current FAR, at section 22.1705, 

entitled ‘‘Contract clause,’’ prescribes 

use of the clause at FAR 52.222–50, 

Combating Trafficking in Persons, in all 

solicitations and contracts. When the 

contract will be performed outside the 

United States, the clause must be used 

with its Alternate I, as prescribed in 

FAR 22.1705(b). The clause requires 

contractors to inform employees of the 

Government’s zero-tolerance policy and 

the actions that will be taken against 

them for violations of the policy. In 

addition, contractors are required to 

notify the contracting officer 

immediately of any information 

received about an employee’s conduct 

that violates this policy and also of 

actions taken against an employee as a 

result of the violation. 

While the clause at FAR 52.222–50, 

Combating Trafficking in Persons, has 

been in effect since February 2009, the 

listing of Government contract 

administration functions was not 

modified at that time to add 

surveillance of a contractor’s 

compliance with the clause 

requirements. Because the addition of 

this contract administration function is 

internal to DoD and will not impact 

current contract requirements or 

contract clauses, this is not a significant 

revision as defined at FAR 1.501–1. 

Therefore, under the authority at FAR 

1.501–3(a), this rule can be published as 

a final rule without first obtaining 

public comment. 

III. Executive Orders 12866 and 13563 

Executive Orders (E.O.s) 12866 and 

13563 direct agencies to assess all costs 

and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). E.O. 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. This is a significant 

regulatory action and, therefore, was 

subject to review under section 6(b) of 

E.O. 12866, Regulatory Planning and 

Review, dated September 30, 1993. This 

rule is not a major rule under 5 U.S.C. 

804. 

IV. Regulatory Flexibility Act 

The Regulatory Flexibility Act does 

not apply to this rule because an initial 

regulatory flexibility analysis is only 

required for proposed or interim rules 

that require publication for public 

comment (5 U.S.C. 603) and a final 

regulatory flexibility analysis is only 

required for final rules that were 

previously published for public 

comment, and for which an initial 

regulatory flexibility analysis was 

prepared (5 U.S.C. 604). 

This final rule does not constitute a 

significant DFARS revision as defined at 

FAR 1.501–1 because this rule will not 

have a significant cost or administrative 

impact on contractors or offerors, or a 

significant effect beyond the internal 

operating procedures of the 

Government. Therefore, publication for 

public comment under 41 U.S.C. 1707 is 

not required. 

V. Paperwork Reduction Act 

The rule does not contain any 

information collection requirements that 

require the approval of the Office of 

Management and Budget under the 

Paperwork Reduction Act (44 U.S.C. 

chapter 35). 

List of Subjects in 48 CFR Part 242 

Government procurement. 

Ynette R. Shelkin, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, 48 CFR part 242 is 

amended as follows: 

PART 242—CONTRACT 

ADMINISTRATION AND AUDIT 

SERVICES 

■ 1. The authority citation for 48 CFR 

part 242 continues to read as follows: 

Authority: 41 U.S.C. 1303 and 48 CFR 

chapter 1. 

■ 2. Amend section 242.302 by adding 

paragraph (a)(S–73) to read as follows: 

242.302 Contract administration functions. 

(a) * * * 

(S–73) Maintain surveillance over 

contractor compliance with trafficking 

in persons requirements for all DoD 

contracts for services incorporating the 

clause at FAR 52.222–50, Combating 

Trafficking in Persons, and, when 

necessary, its Alternate I, as identified 


jlentini on DSK4TPTVN1PROD with RULES3