Fun with the FAR Parts 3 & 9

1.      Simply requesting a gift, gratuity, or anything of monetary value from a contractor who has or is seeking “Government business” with the employee’s agency will constitute a violation of the FAR’s gift regulations.  FAR 3.101-2. 


2.      Prime Contractors are prohibited from executing “exclusive teaming agreements” with subcontractors for the sole purpose of restricting competition or otherwise to preclude subcontractors from providing services or supplies to the Federal Government in the ordinary course of their business.  FAR 3.503-1, FAR 52.203-2(a)(3) and FAR 52.203-6. 


3.      The person signing a contractor’s Certificate of Independent Pricing must be the person within the contractor’s organization who is “responsible for determining the prices being offered.”  FAR 52.203-2(b)(1). 


4.      Unsolicited communications to an agency procurement official from offerors (or a hired recruiting agency) regarding “possible employment” are considered “employment contacts” that would require the agency procurement official to (i) notify his/her supervisor and agency ethics officer and (ii) could cause the agency procurement official to be “disqualified” from his/her procurement duties involving that offeror.  FAR 3.104-3(c)(1) and (c)(2) and FAR 3.104-5(a).


5.      $10M is the dollar threshold value for contracts awards, modifications, and certain other contract actions (e.g., establishment of overhead rates, approval of payments, negotiating or settling claims) that trigger the one year post-government hiring restrictions set forth at FAR 3.1-4-3(d).


6.      Complying with the terms of a designated agency ethics officer (“DAEO”) post-Government employee opinion letter protects both the former Government employee and the government contractor from liability under Procurement Integrity Act.  FAR 3.104-6(d)(3).


7.      Contractors are prohibited from using “appropriated funds” to pay individuals to influence, among other things, the award, extension or modification of a federal government contract.  Contractors can avoid liability by demonstrating that these services were only paid with “profit or fee” earned from a federal government contract or monies earned from commercial contracts.  FAR 3.802(a)(1) and (a)(2).


8.      The thresholds that trigger the FAR requirements for a written code of conduct and establishment of a “Business ethics awareness and compliance program and internal control system” are contracts/subcontracts valued in excess of $5.5M and a period of performance of 120 days or more.  FAR 3.1004 and FAR 52.203-13.


9.      Government contractors subject to FAR 52.203-13 are required to “timely disclose” in writing to the agency OIG (with copy to the CO) whenever it possesses “credible evidence” that a principal, employee, agent or subcontractor has violated a criminal law involving (i) fraud, (ii) conflict of interest, (iii) bribery, or (iv) gratuity violations or a violation of the Civil False Claims Act.  FAR 52.203(c)(2)(F).  This is known as the “Mandatory Disclosure Rule.” 


10.  Unless FAR 9.104-2 “special standards” are required, a prospective contractor shall not be deemed nonresponsible solely on the basis of a lack of relevant performance history.  FAR 9.104-1(c).


11.  Suspensions and debarments should be requested and issued only as a means to protect the integrity of the Acquisition System and not for purposes of punishment.  FAR 9.402.


12.  The mere fact that a “cause” for suspension or debarment exists does not require a contractor or individual to be suspended or debarred.  FAR 9.406.


13.  A contractor or individual may only be “debarred” if they have been “convicted” of a crime or a court has imposed a civil judgment that certain civil laws have been violated.  FAR 9.406-2.  


14.  Federal contractors and individuals who have been suspended or debarred and deemed “ineligible” to receive or perform under a federal Government contract can be found at the General Services Administration web-based System for Award Management Exclusions List.  This is often referred to as the Excluded Parties List and it can be found at  FAR 9.404 and FAR 9.405.


15.  The period of any contract preclusions resulting from an OCI must be explicitly stated in the solicitation and limited to a fixed specified period of time which the CO has determined is necessary to mitigate/eliminate any undue advantage.  FAR 9.507-2.


16.  Although not often granted, a known organizational conflict of interest may be waived by an agency head or delegate not below the level of the head of the contracting activity.  FAR 9.503.

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