Bs.
(i 3) DEPARTMENT OF THE TREASURY
\\ y WASHINGTON, D.C. 20220
Continuation - Attachment A -

Acquisition Bulletin No. 15-03
Class Deviation (Deviation No. 2015-00003)

52.203-99 Prohibition on Contracting with Entities that Require Certain Internal
Confidentiality Agreements. (DEVIATION 2015-00003)

As prescribed in Treasury Acquisition Bulletin No. 15-03 - Class Deviation, insert the
following clause in all solicitations and contracts that will use Federal funds, including
solicitations and contracts for the acquisition of commercial items under FAR part 12, or
when obligating Federal funds on existing contracts.

PROHIBITION ON CONTRACTING WITH ENTITIES THAT REQUIRE
CERTAIN INTERNAL CONFIDENTIALITY AGREEMENTS
(MAR2015) (DEVIATION 2015-00003)

(a) The Contractor shall not require employees or subcontractors seeking to report fraud,
waste, or abuse to sign or comply with 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.

(b) The contractor shall notify employees that the prohibitions and restrictions of any
internal confidentiality agreements covered by this clause are no longer in effect.

(c) The prohibition in paragraph (a) of this clause does not contravene requirements
applicable to Standard Form 312, Form 4414, or any other form issued by a Federal
department or agency governing the nondisclosure of classified information.

(d)(1) In accordance with section 743 of Division E, Title VII, of the Consolidated and
Further Continuing Resolution Appropriations Act, 2015 (Pub. L. 113-235), use of funds
appropriated (or otherwise made available) under that or any other Act may be prohibited,
if the Government determines that the Contractor is not in compliance with the provisions
of this clause.

(2) The Government may seek any available remedies in the event the
contractor fails to comply with the provisions of this clause.

(End of clause)

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DEPARTMENT OF THE TREASURY
WASHINGTON, D.C. 20220

: wise
Attachment A -
Acquisition Bulletin No. 15-03
Class Deviation (Deviation No. 2015-00003)

52.203-98 Prohibition on Contracting with Entities that Require Certain Internal
Confidentiality Agreements—Representation. (DEVIATION 2015-00003)

As prescribed in Treasury Acquisition Bulletin No. 15-03 - Class Deviation, insert the
following provision in all solicitations that will use Federal funds, including solicitations for the
acquisition of commercial items under FAR part 12:

PROHIBITION ON CONTRACTING WITH ENTITIES THAT
REQUIRE CERTAIN INTERNAL CONFIDENTIALITY
AGREEMENTS—REPRESENTATION (MAR2015) (DEVIATION 2015-00003)

(a) In accordance with section 743 of Division E, Title VII, of the Consolidated and
Further Continuing Resolution Appropriations Act, 2015 (Pub. L. 113-235), Government
agencies are not permitted to use funds appropriated (or otherwise made available) under that
or any other Act for contracts with an entity that requires employees or subcontractors of
such entity seeking to report fraud, waste, 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.

(b) The prohibition in paragraph (a) of this provision does not contravene requirements
applicable to Standard Form 312, Form 4414, or any other form issued by a Federal
department or agency governing the nondisclosure of classified information.

(c) Representation. By submission of its offer, the Offeror represents that it does not
require employees or subcontractors of such entity seeking to report fraud, waste, 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.

(End of provision)

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DEPARTMENT OF THE TREASURY
WASHINGTON, D.C. 20220

Acquisition Bulletin No. 15-03

March 18, 2015
Deviation No. 2015-00003

MEMORANDUM FOR BUREAU CHIEF PROCUREMENT OFFICERS

Ris B, Cocpar
FROM: IRIS B. COOPER,

SENIOR PROCUREMENT EXECUTIVE, OFFICE OF
THE PROCUREMENT EXECUTIVE

SUBJECT: Class Deviation—Implementation of an Appropriations Provision Related
to Internal Confidentiality Agreements and the Reporting of Fraud, Waste,
or Abuse.

Purpose: This class deviation is issued in accordance with FAR 1.404 to implement provisions
from Section 743 of Consolidated and Further Continuing Appropriations Act, 2015 (Public Law
113-235) and any other Act, which includes such prohibition.

Effective Date: Upon issuance
Expiration Date: Until superseded, incorporated in the FAR or DTAR or otherwise rescinded.

Background: Within Public Law 113-235, Section 743 prohibits the use of funds for a
contract, grant, or cooperative agreement with an entity that requires employees or contractors
of such entity seeking to report fraud, waste, or abuse to sign internal confidentiality
agreements or statements prohibiting or otherwise restricting such employees or contactors
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 below excerpt of Section 743).

“Sec. 743. (a) None of the funds appropriated or otherwise made available by this or any
other Act may be available for a contract, grant, or cooperative agreement with an entity that
requires employees or contractors of such entity seeking to report fraud, waste, or abuse to
sign internal confidentiality agreements or statements prohibiting or otherwise restricting
such employees or contactors 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.

(b) The limitation in subsection (a) shall not contravene requirements applicable to Standard

Form 312, Form 4414, or any other form issued by a Federal department or agency
governing the nondisclosure of classified information.”

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DEPARTMENT OF THE TREASURY
WASHINGTON, D.C. 20220

re

The Chair of the Civilian Agency Acquisition Council (CAAC) issued a memorandum dated
February 27, 2015 (i.e. CAAC Letter 2015-02 which is available at
https://acquisition.gov/comp/caac/caacletters.html), recommending that each affected agency by
this prohibition, including Treasury, issue a class deviation pending the issuance of this rule via
incorporation into the FAR (reference FAR Case 2015-012). An important highlight of this
appropriation prohibition is that it applies to both new and existing contracts whereas typically
appropriation prohibitions apply only to new contacts (e.g. AB No. 15-02 which deals with
Sections 744 and 745 of Public Law 113-235). The issuance of this memorandum constitutes
the consultation with the CAAC Chair required by FAR 1.404(a)(1). Overall, the Senior
Procurement Executive has determined that the issuance of this class deviation is authorized and
necessary to implement the provisions of Section 743 of Public Law 113-235 and any other Act
that includes such prohibition.

Required Bureau Action:

1. Applicability. This class deviation applies to any contract that will use Federal funds,
including solicitations and contracts using FAR part 12 procedures for the acquisition of
commercial items. Federal funds as used herein covers all funds under the control of a Treasury
organization.

2. New Contracts. Contracting officers shall—
e Include the provision at 1052.203-98 (see Attachment A) in all solicitations that will use
Federal funds, including solicitations for the acquisition of commercial items under FAR
part 12; and

e Include the clause at 1052.203-99 (see Continuation -Attachment A) in all solicitations
and contracts that will use Federal funds, including solicitations and contracts for the

acquisition of commercial items under FAR part 12.

3. Contracts awarded before the effective date of this AB (i.e. existing contracts).

a. Existing contracts that are not Indefinite-Delivery contracts. Contracting officers
shall include the clause at 1052.203-99 (see Continuation -Attachment A) when
obligating Federal funds, e.g. when exercising an option or modifying the contract to
add Federal funds related to a change order, on existing contracts.

a.1 As a good business practice, OPE suggests BCPOs consider have contracting officers
include information on this new requirement in the Government’s notification of its
intent to exercise the next option period. This type of advance communication could
avoid potential delays, if this new requirement is not conveyed in a timely fashion
prior to the exercise of the option.

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(i q DEPARTMENT OF THE TREASURY
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TRE

b. Existing Indefinite-Delivery contracts and Agreements. Existing Indefinite-Delivery
contracts and Agreements (e.g. Blanket Purchase Agreement and Blanket Ordering
Agreement) shall be modified to include the clause at 1052.203-99 (see Continuation -
Attachment A) prior to issuance of the next order or call.

b.1 BCPOs shall develop a list of all existing Indefinite-Delivery contracts and
Agreements and then make a determination as to whether or not additional orders or
calls are anticipated to be placed against them. If the determination is yes, then the
contracting officer shall execute the modification accordingly.

4. Contract actions against contracts or agreements intended for use by multiple
agencies, including Federal Supply Schedule (FSS) contracts, Governmentwide

acquisition contracts (GWAC), and a multi-agency contracts (MAC). Contracting
Officers shall—

a. Determine whether or not the provision provided in Attachment A and the clause
provided in Continuation -Attachment A have been included in the contract or
agreement; and

b. Ifnot, follow the steps outlined in 2 above.

5. Bureau Chief Procurement Officers (BCPO) Responsibilities. BCPOs shall

a. Ensure dissemination of this AB to all impacted personnel and
b. Update any related Bureau policies and procedures impacted by this AB.

Additional Information: My point of contact for this AB is Mr. Thomas O’Linn, who may be
reached at thomas.olinn@treasury.gov or OfficeoftheProcurementExecutive@treasury. gov.

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