Federal Register / Vol. 89, No. 187 / Thursday, September 26, 2024 / Proposed Rules 79013 

Data Other Than Certified Cost or Pricing 

Data—Modifications. 

* * * * * 

252.215–70TT Alternate A, Price Reduction 

for Defective Certified Cost or Pricing 

Data—Modifications. 

As prescribed in 215.408(9)(i), use the 

following clause: 

Alternate A, Price Reduction for 

Defective Certified Cost or Pricing 

Data—Modifications (DATE) 

Substitute ‘‘215.403–4(a)(1) of the Defense 

Federal Acquisition Regulation Supplement’’ 

for references to 15.403–4(a)(1) of the Federal 

Acquisition Regulation wherever they appear 

in the clause at 52.215–11, Price Reduction 

for Defective Certified Cost or Pricing Data— 

Modifications. 

(End of clause) 

252.215–70UU Alternate A, Subcontractor 

Certified Cost or Pricing Data. 

As prescribed in 215.408(9)(ii), use 

the following clause: 

Alternate A, Subcontractor Certified 

Cost or Pricing Data (DATE) 

Substitute ‘‘215.403–4(a)(1) of the Defense 

Federal Acquisition Regulation Supplement’’ 

for references to 15.403–4(a)(1) of the Federal 

Acquisition Regulation wherever they appear 

in the clause at 52.215–12, Subcontractor 

Certified Cost or Pricing Data. 

(End of clause) 

252.215–70VV Alternate A, Subcontractor 

Certified Cost or Pricing Data— 

Modifications. 

As prescribed in 215.408(9)(iii), use 

the following clause: 

Alternate A, Subcontractor Certified 

Cost or Pricing Data—Modifications 

(DATE) 

Substitute ‘‘215.403–4(a)(1) of the Defense 

Federal Acquisition Regulation Supplement’’ 

for references to 15.403–4(a)(1) of the Federal 

Acquisition Regulation wherever they appear 

in the clause at 52.215–13, Subcontractor 

Certified Cost or Pricing Data— 

Modifications. 

(End of clause) 

252.215–70WW Alternate A, Requirements 

for Certified Cost or Pricing Data and Data 

Other Than Certified Cost or Pricing Data— 

Modifications. 

As prescribed in 215.408(9)(iv), use 

the following clause: 

Alternate A, Requirements for Certified 

Cost or Pricing Data and Data Other 

Than Certified Cost or Pricing Data— 

Modifications (DATE) 

Substitute ‘‘215.403–4(a)(1) of the Defense 

Federal Acquisition Regulation Supplement’’ 

for references to 15.403–4(a)(1) of the Federal 

Acquisition Regulation wherever they appear 

in the clause at 52.215–21, Requirements for 

Certified Cost or Pricing Data and Data Other 

Than Certified Cost or Pricing Data— 

Modifications. 

(End of clause) 

[FR Doc. 2024–21098 Filed 9–25–24; 8:45 am] 

BILLING CODE 6820–FR–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 209, 212, 237, and 252 

[Docket DARS–2024–0029] 

RIN 0750–AM04 

Defense Federal Acquisition 

Regulation Supplement: Preventing 

Conflicts of Interest for Certain 

Consulting Services (DFARS Case 

2024–D007) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Proposed rule. 

SUMMARY: DoD is proposing to amend 

the Defense Federal Acquisition 

Regulation Supplement (DFARS) to 

implement a section of the National 

Defense Authorization Act for Fiscal 

Year 2024 that prohibits contracting 

officers from awarding contracts 

assigned certain North American 

Industry Classification System codes to 

offerors that hold contracts that involve 

consulting services with certain covered 

foreign entities. 

DATES: Comments on the proposed rule 

should be submitted in writing to the 

address shown below on or before 

November 25, 2024, to be considered in 

the formation of a final rule. 

ADDRESSES: Submit comments 

identified by DFARS Case 2024–D007, 

using either of the following methods: 

Æ Federal eRulemaking Portal: 

https://www.regulations.gov. Search for 

DFARS Case 2024–D007. Select 

‘‘Comment’’ and follow the instructions 

to submit a comment. Please include 

‘‘DFARS Case 2024–D007’’ on any 

attached documents. 

Æ Email: osd.dfars@mail.mil. Include 

DFARS Case 2024–D007 in the subject 

line of the message. 

Comments received generally will be 

posted without change to https://

www.regulations.gov, including any 

personal information provided. To 

confirm receipt of your comment(s), 

please check https://

www.regulations.gov, approximately 

two to three days after submission to 

verify posting. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Jon Snyder, telephone 703–945–5341. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD is proposing to revise the DFARS 

to implement section 812 of the 

National Defense Authorization Act 

(NDAA) for Fiscal Year (FY) 2024 (Pub. 

L. 118–31). Section 812 prohibits 

contracting officers from awarding 

contracts assigned a North American 

Industry Classification System (NAICS) 

code beginning with 5416 to offerors 

who hold contracts that involve 

consulting services with certain covered 

foreign entities. NAICS codes beginning 

with 5416 are for management, 

scientific, and technical consulting 

services. Section 812 allows an offeror 

to submit a conflict-of-interest 

mitigation plan and allows the 

prohibition to be waived under certain 

circumstances. 

II. Discussion and Analysis 

This proposed rule includes a new 

section 209.57X, Conflicts of Interest in 

Certain Consulting Services, to 

implement section 812 of the NDAA for 

FY 2024. This new section 209.57X 

provides contracting officers the scope, 

definitions, prohibition, and waiver 

procedures for conflicts of interest in 

consulting services. DFARS 209.57X(c) 

prohibits contracting officers from 

awarding contracts assigned a NAICS 

code beginning with 5416 to an offeror 

that holds a contract for consulting 

services with one or more covered 

foreign entities if the offeror does not 

have an approved conflict-of-interest 

mitigation plan. DFARS 209.57X(b) 

contains the definitions of ‘‘consulting 

services’’, ‘‘contract oversight entity’’, 

‘‘covered contract’’, and ‘‘covered 

foreign entity’’. The proposed rule also 

includes DFARS 209.503–70, which 

specifies the waiver authority for the 

prohibition at 209.57X(c). 

A new solicitation provision is 

proposed at DFARS 252.209–70XX, 

Prohibition Relating to Conflicts of 

Interest in Consulting Services— 

Certification, for use in solicitations 

assigned a NAICS code beginning with 

5416 that involve consulting services, 

including solicitations using Federal 

Acquisition Regulation (FAR) part 12 

procedures for the acquisition of 

commercial services. DFARS 252.209– 

70XX requires an offeror to certify 

whether or not the offeror, its 

subsidiaries, or its affiliates hold a 

contract for consulting services with one 

or more covered foreign entities. If the 

offeror cannot certify to this, the offeror 

may contact the contracting officer for 

guidance on submitting an existing 


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conflict-of-interest mitigation plan. If 

such a plan is submitted and approved, 

the provision specifies that the plan will 

be incorporated into any resulting 

contract awarded to the offeror. The 

new solicitation provision is prescribed 

at 209.57X(e). 

The new solicitation provision is 

proposed to be added to the list of 

provisions and clauses for use in 

solicitations and contracts for 

commercial products and commercial 

services at DFARS 212.301. 

III. Applicability to Contracts at or 

Below the Simplified Acquisition 

Threshold (SAT), for Commercial 

Products (Including Commercially 

Available Off-the-Shelf (COTS) Items), 

and for Commercial Services 

This proposed rule proposes a new 

provision at DFARS 252.209–70XX, 

Prohibition Relating to Conflicts of 

Interest in Consulting Services— 

Certification, to implement the 

requirements of section 812 of the 

NDAA for FY 2024. The provision at 

DFARS 252.209–70XX is prescribed at 

DFARS 209.57X(e) for use in 

solicitations assigned a NAICS code 

beginning with 5416 that involve 

consulting services, including 

solicitations using FAR part 12 

procedures for the acquisition of 

commercial services. DoD does intend 

to apply the proposed rule to contracts 

at or below the SAT and for the 

acquisition of commercial services. DoD 

does not intend to apply the proposed 

rule to contracts for the acquisition of 

commercial products, including COTS 

items. 

A. Applicability to Contracts at or Below 

the Simplified Acquisition Threshold 

The statute at 41 U.S.C. 1905 governs 

the applicability of laws to contracts or 

subcontracts in amounts not greater 

than the simplified acquisition 

threshold. It is intended to limit the 

applicability of laws to such contracts or 

subcontracts. The statute at 41 U.S.C. 

1905 provides that if a provision of law 

contains criminal or civil penalties, or if 

the Federal Acquisition Regulatory 

Council makes a written determination 

that it is not in the best interest of the 

Federal Government to exempt contracts 

or subcontracts at or below the SAT, the 

law will apply to them. The Principal 

Director, Defense Pricing, Contracting, 

and Acquisition Policy (DPCAP), is the 

appropriate authority to make 

comparable determinations for 

regulations to be published in the 

DFARS, which is part of the Federal 

Acquisition Regulation system of 

regulations. DoD does intend to make 

that determination. Therefore, this 

proposed rule will apply at or below the 

simplified acquisition threshold. 

B. Applicability to Contracts for the 

Acquisition of Commercial Products 

Including COTS Items and for the 

Acquisition of Commercial Services 

The statue at 10 U.S.C. 3452 exempts 

contracts and subcontracts for the 

acquisition of commercial products 

including COTS items, and commercial 

services from provisions of law enacted 

after October 13, 1994, unless the Under 

Secretary of Defense (Acquisition and 

Sustainment) (USD(A&S)) makes a 

written determination that it would not 

be in the best interest of DoD to exempt 

contracts for the procurement of 

commercial products and commercial 

services from the applicability of the 

provision or contract requirement, 

except for a provision of law that— 

• Provides for criminal or civil 

penalties; 

• Requires that certain articles be 

bought from American sources pursuant 

to 10 U.S.C. 4862 (previously 10 U.S.C. 

2533c), or that strategic materials 

critical to national security be bought 

from American sources pursuant to 10 

U.S.C. 4863 (previously 10 U.S.C. 

2533b); or 

• Specifically refers to 10 U.S.C. 3452 

and states that it shall apply to contracts 

and subcontracts for the acquisition of 

commercial products (including COTS 

items) and commercial services. 

The statute implemented in this 

proposed rule does not impose criminal 

or civil penalties, does not require 

purchase pursuant to 10 U.S.C. 4862 or 

4863, and does not refer to 10 U.S.C. 

3452. Therefore, section 812 of the 

NDAA for FY 2024 will not apply to the 

acquisition of commercial services or 

commercial products including COTS 

items unless a written determination is 

made. Due to delegations of authority, 

the Principal Director, DPCAP is the 

appropriate authority to make this 

determination. 

DoD intends to make that 

determination to apply this statute to 

the acquisition of commercial services. 

DoD does not intend to make that 

determination to apply this statute to 

the acquisition of commercial products 

including COTS items. Therefore, this 

proposed rule will apply to the 

acquisition of commercial services but 

will not apply to the acquisition of 

commercial products including COTS 

items. 

C. Determinations 

Given that the requirements of section 

812 of the NDAA for FY 2024 were 

enacted to ensure the integrity and 

security of contracted consulting 

services, it is in the best interest of the 

Federal Government to apply the statute 

to contracts valued at or below the SAT 

and for the acquisition of commercial 

services, as defined at Federal 

Acquisition Regulation 2.101. 

Acquisitions below the SAT represent 

42 percent of the consulting services 

contracts awarded in the last three fiscal 

years. Therefore, excluding these 

contracts would result in a significant 

national security risk. 

Consulting services are commercial 

services, as defined at FAR 2.101. 

Therefore, an exception for contracts for 

the acquisition of commercial services 

would exclude the contracts intended to 

be covered by the law, thereby 

undermining the overarching purpose of 

the law. 

IV. Expected Impact of the Rule 

This proposed rule, when finalized, 

will prohibit contracting officers from 

awarding contracts, assigned a NAICS 

code beginning with 5416, to offerors 

who hold contracts that involve 

consulting services with covered foreign 

entities. NAICS codes beginning with 

5416 are for management, scientific, and 

technical consulting services. 

Offerors responding to solicitations 

assigned those NAICS codes will be 

required to certify whether or not they 

hold contracts that involve consulting 

services with one or more covered 

foreign entities and whether they 

maintain a conflict-of-interest mitigation 

plan. If an offeror certifies that they do 

hold such a contract, the offeror may 

consult with the contracting officer and 

submit a conflict-of-interest mitigation 

plan that is auditable by a contract 

oversight entity. If the offeror’s plan is 

approved, the contracting officer will 

incorporate the plan into the resulting 

contract. If the offeror does not submit 

a conflict-of-interest mitigation plan, the 

contracting officer may determine the 

award is in the best interests of the 

United States with appropriate 

approval. In addition, the agency will be 

required to submit to Congress any use 

of such waiver authority. 

DoD expects this proposed rule, when 

finalized, to prevent adversaries from 

accessing sensitive information that may 

cause harm to the United States. 

V. 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 


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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, as amended. 

VI. Regulatory Flexibility Act 

DoD does not expect this proposed 

rule, when finalized, to have a 

significant economic impact on a 

substantial number of small entities 

within the meaning of the Regulatory 

Flexibility Act, 5 U.S.C. 601, et seq., 

because this proposed rule primarily 

impacts offerors that hold contracts with 

certain covered foreign entities. 

However, an initial regulatory flexibility 

analysis has been performed and is 

summarized as follows: 

This proposed rule is required to 

implement section 812 of the National 

Defense Authorization Act (NDAA) for 

Fiscal Year (FY) 2024 (Pub. L. 118–31). 

Section 812 prohibits contracting 

officers from awarding contracts, 

assigned a North American Industry 

Classification System (NAICS) code 

beginning with 5416, to an offeror that 

holds a contract for consulting services 

with one or more covered foreign 

entities. NAICS codes beginning with 

5416 are for management, scientific, and 

technical consulting services. 

The objective of this proposed rule is 

to implement section 812 of the NDAA 

for FY 2024, which is the legal basis for 

this proposed rule. 

According to data obtained from the 

Procurement Integrated Enterprise 

Environment in the last three fiscal 

years, DoD awarded contracts with 

NAICS codes starting with 5416 to an 

average of 864 unique small entities per 

year. However, DoD cannot determine 

how many of those contracts awarded to 

small entities involve potential conflicts 

of interest. 

This proposed rule does impose new 

reporting, recordkeeping, or other 

compliance requirements for small 

entities. The new solicitation provision 

at DFARS 252.209–70XX, Notice of 

Prohibition Relating to Conflicts of 

Interest in Consulting Services— 

Certification, requires offerors to certify 

whether they or their subsidiaries or 

affiliates hold a contract for consulting 

services with one or more covered 

entities and whether they maintain a 

conflict-of-interest mitigation plan that 

meets certain criteria listed in the 

solicitation provision. 

This proposed rule does not 

duplicate, overlap, or conflict with any 

other Federal rules. 

There are no known alternatives that 

would accomplish the stated objectives 

of the applicable statute. 

DoD invites comments from small 

business concerns and other interested 

parties on the expected impact of this 

proposed rule on small entities. 

DoD will also consider comments 

from small entities concerning the 

existing regulations in subparts affected 

by this proposed rule in accordance 

with 5 U.S.C. 610. Interested parties 

must submit such comments separately 

and should cite 5 U.S.C. 610 (DFARS 

Case 2024–D007), in correspondence. 

VII. Paperwork Reduction Act 

This proposed rule contains 

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). Accordingly, DoD has 

submitted a request for approval of a 

new information collection requirement 

concerning DFARS Case 2024–D007, 

Preventing Conflicts of Interest for 

Certain Consulting Services, to the 

Office of Management and Budget. 

A. Estimate of Public Burden 

Public reporting burden for this 

collection of information is estimated to 

average 1 hour per response, including 

the time for reviewing instructions, 

searching existing data sources, 

gathering and maintaining the data 

needed, and completing and reviewing 

the collection of information. 

The annual reporting burden is 

estimated as follows: 

1. Certification 

Respondents: 5,307. 

Number of annual responses: 5,307. 

Annual burden hours: 5,307. 

2. Conflict-of-Interest Mitigation Plan 

Respondents: 114. 

Number of annual responses: 177. 

Annual burden hours: 144. 

3. Total Public Burden 

Respondents: 5,307. 

Number of annual responses: 5,484. 

Annual burden hours: 5,484. 

B. Request for Comments Regarding 

Paperwork Burden 

Written comments and 

recommendations on the proposed 

information collection, including 

suggestions for reducing this burden, 

should be submitted using the Federal 

eRulemaking Portal at https://

www.regulations.gov or by email to 

osd.dfars@mail.mil. Comments can be 

received up to 60 days after the date of 

this document. 

Public comments are particularly 

invited on: whether this collection of 

information is necessary for the proper 

performance of the functions of DoD, 

including whether the information will 

have practical utility; the accuracy of 

DoD’s estimate of the burden of this 

information collection; ways to enhance 

the quality, utility, and clarity of the 

information to be collected; and ways to 

minimize the burden of the information 

collection on respondents, including 

through the use of automated collection 

techniques or other forms of information 

technology. 

To obtain a copy of the supporting 

statement and associated collection 

instruments, please email osd.dfars@

mail.mil. Include DFARS Case 2024– 

D007 in the subject line of the message. 

List of Subjects in 48 CFR Parts 209, 

212, 237, and 252 

Government procurement. 

Jennifer D. Johnson, 

Editor/Publisher, Defense Acquisition 

Regulations System. 

Therefore, the Defense Acquisition 

Regulations System proposes to amend 

48 CFR parts 209, 212, 237, and 252 as 

follows: 

■ 1. The authority citation for parts 209, 

212, 237, and 252 continues to read as 

follows: 

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

chapter 1. 

PART 209—CONTRACTOR 

QUALIFICATIONS 

■ 2. Add section 209.503–70 to read as 

follows: 

209.503–70 Waiver. 

Notwithstanding FAR 9.503, for 

consulting services, as defined at 

209.57X(b), the waiver approval 

authority is the Secretary of Defense and 

the following officials, without power of 

delegation below an official appointed 

by the President and confirmed by the 

Senate: 

(a) The Under Secretary of Defense 

(Acquisition and Sustainment). 

(b) The assistant secretaries of the 

military departments. (See PGI 209.503– 

70.) 

■ 3. Add section 209.57X to read as 

follows: 

209.57 X Conflicts of interest in certain 

consulting services. 

(a) Scope. (1) This section implements 

section 812 of the National Defense 

Authorization Act for Fiscal Year 2024 

(Pub. L. 118–31). 

(2) To the extent that this section is 

inconsistent with FAR subpart 9.5, this 

section takes precedence. 


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79016 Federal Register / Vol. 89, No. 187 / Thursday, September 26, 2024 / Proposed Rules 

(b) Definitions. As used in this 

section— 

Consulting services means advisory 

and assistance services, except that the 

term does not include the provision of 

products or services related to— 

(i) Compliance with legal, audit, 

accounting, tax, reporting, or other 

requirements of the laws and standards 

of countries; or 

(ii) Participation in a judicial, legal, or 

equitable dispute resolution proceeding. 

Contract oversight entity means any of 

the following: 

(i) The contracting officer. 

(ii) The contracting officer’s 

representative. 

(iii) The Defense Contract 

Management Agency. 

(iv) The Defense Contract Audit 

Agency. 

(v) The DoD Office of Inspector 

General or any subcomponent of that 

office. 

(vi) The Government Accountability 

Office. 

Covered contract means a DoD 

contract involving consulting services. 

Covered foreign entity means any of 

the following: 

(i) The government of the People’s 

Republic of China, the Chinese 

Communist Party, the People’s 

Liberation Army, the Ministry of State 

Security, or other security service or 

intelligence agency of the People’s 

Republic of China. 

(ii) The government of the Russian 

Federation or any entity sanctioned by 

the Secretary of the Treasury under 

Executive Order 13662, Blocking 

Property of Additional Persons 

Contributing to the Situation in Ukraine. 

(iii) The government of any country if 

the Secretary of State determines that 

such government has repeatedly 

provided support for acts of 

international terrorism pursuant to any 

of the following: 

(A) Section 1754(c)(1)(A) of the 

Export Control Reform Act of 2018 (50 

U.S.C. 4318(c)(1)(A)). 

(B) Section 620A of the Foreign 

Assistance Act of 1961 (22 U.S.C. 2371). 

(C) Section 40 of the Arms Export 

Control Act (22 U.S.C. 2780). 

(D) Any other provision of law. 

(iv) Any entity included on any of the 

following lists maintained by the 

Department of Commerce (see the 

Export Administration Regulations at 15 

CFR subchapter C): 

(A) The Entity List in supplement no. 

4 to 15 CFR part 744. 

(B) The Denied Persons List as 

described in 15 CFR 764.3(a)(2). 

(C) The Unverified List in supplement 

no. 6 to 15 CFR part 744. 

(D) The Military End User List in 

supplement no. 7 to 15 CFR part 744. 

(v) Any entity identified by the 

Secretary of Defense pursuant to section 

1237(b) of the National Defense 

Authorization Act for Fiscal Year 1999 

(Pub. L. 105–261; 50 U.S.C. 1701 note). 

(vi) Any entity on the Non-Specially 

Designated Nationals Chinese MilitaryIndustrial Complex Companies List 

maintained by the Office of Foreign 

Assets Control of the Department of the 

Treasury under Executive Order 14032, 

Addressing the Threat From Securities 

Investments That Finance Certain 

Companies of the People’s Republic of 

China. 

(c) Prohibition. The contracting officer 

shall not award a contract assigned a 

North American Industry Classification 

System (NAICS) code beginning with 

5416 that involves consulting services to 

an offeror that— 

(1) Cannot certify that neither the 

offeror nor its subsidiaries or affiliates 

hold a contract involving consulting 

services with one or more covered 

foreign entities; and 

(2) Does not have a conflict-of-interest 

mitigation plan that is auditable by a 

contract oversight entity and approved 

by the contracting officer. 

(d) Waiver. (1) If the prospective 

contractor(s) certified, in response to 

paragraph (c) of the provision at 

252.209–70XX, Prohibition Relating to 

Conflicts of Interest in Consulting 

Services—Certification, that it or its 

subsidiaries or affiliates hold a contract 

for consulting services with one or more 

covered foreign entities and the offeror 

has not submitted an acceptable 

conflict-of-interest mitigation plan, the 

contracting officer shall— 

(i) Notify the offeror of the potential 

withholding of award due to the 

unmitigated conflict of interest; and 

(ii) Specify that the offeror has 10 

days to respond to the notification. 

(2) If the contracting officer 

determines that it is in the best interests 

of the United States to award the 

contract, notwithstanding the conflict of 

interest, the contracting officer shall 

request a waiver in accordance with 

209.503–70. 

(3) The prohibition may be waived on 

a case-by-case basis if an official listed 

at 209.503–70 determines that a waiver 

is necessary for national security 

purposes. 

(4) The contracting officer shall 

include the waiver request and the 

waiver in the contract file. 

(5) Not later than 30 days after 

approval of the waiver, the agency shall 

provide written notification to the 

House and Senate Armed Services 

Committees of the use of such waiver 

authority. The notification shall 

include— 

(i) The specific justification for 

providing the waiver; 

(ii) The number of offerors that did 

not require a waiver; 

(iii) The number of offerors that were 

granted a waiver; 

(iv) Identification of the covered 

foreign entity that is the subject of the 

waiver; and 

(v) The total dollar value of the 

covered contract. 

(e) Solicitation provision. Use the 

provision at 252.209–70XX, Prohibition 

Relating to Conflicts of Interest in 

Consulting Services—Certification, in 

solicitations, including solicitations 

using FAR part 12 procedures for the 

acquisition of commercial services, 

assigned a NAICS code beginning with 

5416. Do not include the provision in 

solicitations for the acquisition of 

commercial products. 

PART 212—ACQUISITION OF 

COMMERCIAL PRODUCTS AND 

COMMERCIAL SERVICES 

■ 4. Amend section 212.301 by revising 

paragraph (f)(iv) to read as follows: 

212.301 Solicitation provisions and 

contract clauses for the acquisition of 

commercial products and commercial 

services. 

* * * * * 

(f) * * * 

(iv) Part 209—Contractor 

Qualifications. (A) Use the provision at 

252.209–7011, Representation for 

Restriction on the Use of Certain 

Institutions of Higher Education, as 

prescribed at 209.170–4, to comply with 

section 1062 of the National Defense 

Authorization Act for Fiscal Year 2021 

(Pub. L. 116–283). 

(B) Use the provision at 252.209– 

70XX, Prohibition Relating to Conflicts 

of Interest in Consulting Services— 

Certification, as prescribed in 

209.57X(e), to comply with section 812 

of the National Defense Authorization 

Act for Fiscal Year 2024 (Pub. L. 118– 

31). 

* * * * * 

PART 237—SERVICE CONTRACTING 

■ 5. Add section 237.27X to read as 

follows: 

237.27X Consulting services. 

See 209.57X for requirements related 

to conflicts of interest in consulting 

services. 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 6. Add section 252.209–70XX to read 

as follows: 


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Federal Register / Vol. 89, No. 187 / Thursday, September 26, 2024 / Proposed Rules 79017 

252.209–70XX Prohibition Relating to 

Conflicts of Interest in Consulting 

Services—Certification. 

As prescribed in 209.57X(e), use the 

following provision: 

Prohibition Relating to Conflicts of 

Interest in Consulting Services— 

Certification (DATE) 

(a) Definitions. As used in this provision— 

Consulting services means advisory and 

assistance services, except that the term does 

not include the provision of products or 

services related to— 

(1) Compliance with legal, audit, 

accounting, tax, reporting, or other 

requirements of the laws and standards of 

countries; or 

(2) Participation in a judicial, legal, or 

equitable dispute resolution proceeding. 

Contract oversight entity means any of the 

following: 

(1) The Contracting Officer. 

(2) The Contracting Officer’s 

Representative. 

(3) The Defense Contract Management 

Agency. 

(4) The Defense Contract Audit Agency. 

(5) The DoD Office of Inspector General or 

any subcomponent of that office. 

(6) The Government Accountability Office. 

Covered contract means a DoD contract 

involving consulting services. 

Covered foreign entity means any of the 

following: 

(1) The government of the People’s 

Republic of China, the Chinese Communist 

Party, the People’s Liberation Army, the 

Ministry of State Security, or other security 

service or intelligence agency of the People’s 

Republic of China. 

(2) The government of the Russian 

Federation or any entity sanctioned by the 

Secretary of the Treasury under Executive 

Order 13662, Blocking Property of Additional 

Persons Contributing to the Situation in 

Ukraine. 

(3) The government of any country, if the 

Secretary of State determines that such 

government has repeatedly provided support 

for acts of international terrorism, pursuant 

to any of the following: 

(i) Section 1754(c)(1)(A) of the Export 

Control Reform Act of 2018 (50 U.S.C. 

4318(c)(1)(A)). 

(ii) Section 620A of the Foreign Assistance 

Act of 1961 (22 U.S.C. 2371). 

(iii) Section 40 of the Arms Export Control 

Act (22 U.S.C. 2780). 

(iv) Any other provision of law. 

(4) Any entity included on any of the 

following lists maintained by the Department 

of Commerce (see the Export Administration 

Regulations at 15 CFR subchapter C): 

(i) The Entity List in supplement no. 4 to 

15 CFR part 744. 

(ii) The Denied Persons List as described 

in 15 CFR 764.3(a)(2). 

(iii) The Unverified List in supplement no. 

6 to 15 CFR part 744. 

(iv) The Military End User List in 

supplement no. 7 to 15 CFR part 744. 

(5) Any entity identified by the Secretary 

of Defense pursuant to section 1237(b) of the 

National Defense Authorization Act for Fiscal 

Year 1999 (Pub. L. 105–261; 50 U.S.C. 1701 

note). 

(6) Any entity on the Non-Specially 

Designated Nationals Chinese MilitaryIndustrial Complex Companies List 

maintained by the Office of Foreign Assets 

Control of the Department of the Treasury 

under Executive Order 14032, Addressing the 

Threat from Securities Investments that 

Finance Certain Companies of the People’s 

Republic of China. 

(b) Prohibition. If the Offeror cannot certify 

that neither the Offeror nor any of its 

subsidiaries or affiliates hold a contract that 

involves consulting services with one or 

more covered foreign entities, DoD cannot 

award to the Offeror a contract assigned a 

North American Industry Classification 

System code beginning with 5416. 

(c) Certification. The Offeror certifies 

that— 

(1)(i) It does [ ] does not [ ] hold a contract 

for consulting services with one or more 

covered foreign entities; and 

(ii) Its subsidiaries or affiliates do [ ] do not 

[ ] hold a contract for consulting services with 

one or more covered foreign entities; and 

(2) It does [ ] does not [ ] maintain a 

conflict-of-interest mitigation plan described 

in paragraph (d) of this provision. 

(d) Conflict-of-interest mitigation plan. If 

the Offeror answered in the affirmative in 

paragraphs (c)(1) and (2) of this provision, 

the Offeror may contact the Contracting 

Officer for guidance on submitting the 

Offeror’s conflict-of-interest mitigation plan. 

(1) The Offeror’s conflict-of-interest 

mitigation plan shall be auditable by a 

contract oversight entity and shall include— 

(i) An identification, unless otherwise 

prohibited by law or regulation, of any 

covered contracts of the Offeror or its 

subsidiaries or affiliates with a covered 

foreign entity. If the Offeror is unable to 

identify one or more covered foreign entities 

due to confidentiality obligations, the Offeror 

shall identify such entities as a covered 

foreign entity; 

(ii) A written analysis, including a course 

of action for avoiding, neutralizing, or 

mitigating the actual or potential conflict of 

interest of such a covered contract; 

(iii) A description of the procedures by 

which the Offeror or its subsidiaries or 

affiliates will ensure that individuals who 

will perform the scope of a covered contract 

will not, for the duration of such contract, 

also provide any consulting services to any 

covered foreign entity; and 

(iv) A description of the procedures by 

which the Offeror or its subsidiaries or 

affiliates will submit to the contract oversight 

entities a notice of an unmitigated conflict of 

interest with respect to a covered contract 

within 15 days of determining that such a 

conflict has arisen. 

(2) If the Contracting Officer approves the 

Offeror’s conflict-of-interest mitigation plan, 

the Contracting Officer will incorporate the 

plan into any contract awarded to the Offeror 

resulting from this solicitation. 

(End of provision) 

[FR Doc. 2024–21099 Filed 9–25–24; 8:45 am] 

BILLING CODE 6001–FR–P 


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