[Federal Register Volume 76, Number 223 (Friday, November 18, 2011)]
[Rules and Regulations]
[Pages 71826-71830]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-29421]
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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.
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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 post-employment 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'
[[Page 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 post-employment
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
post-employment 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
[[Page 71828]]
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 post-employment 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 indefinite-delivery, indefinite-quantity contract
is awarded, and not for each task or delivery order.''
Response: The final rule clarifies the requirement. The
prescription, at
[[Page 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 post-employment 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
post-employment 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:
0
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
0
2. Revise section 203.171-4 to read as follows:
[[Page 71830]]
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
0
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 post-employment 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]
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