[Federal Register Volume 81, Number 14 (Friday, January 22, 2016)]
[Proposed Rules]
[Pages 3763-3767]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-01050]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 3, 4, and 52

[FAR Case 2015-012; Docket No. 2015-0012; Sequence No. 1]
RIN 9000-AN04


Federal Acquisition Regulation: Contractor Employee Internal 
Confidentiality Agreements

AGENCY: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Proposed rule.

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SUMMARY: DoD, GSA, and NASA are proposing to amend the Federal 
Acquisition Regulation (FAR) to implement a section of the Consolidated 
and Further Continuing Appropriations Act, 2015, that prohibits the use 
of funds, appropriated or otherwise made available, for a contract with 
an entity that requires employees or subcontractors to sign an internal 
confidentiality agreement that restricts such employees or 
subcontractors from lawfully reporting waste, fraud, or abuse to a 
designated Government representative authorized to receive such 
information.

DATES: Interested parties should submit written comments to the 
Regulatory Secretariat at one of the addresses shown below on or before 
March 22, 2016 to be considered in the formation of the final rule.

ADDRESSES: Submit comments in response to FAR Case 2015-012 by any of 
the following methods:
     Regulations.gov: http://www.regulations.gov. Submit 
comments via the Federal eRulemaking portal by searching for ``FAR Case 
2015-012''. Select the link ``Comment Now'' that corresponds with FAR 
Case 2015-012. Follow the instructions provided on the screen. Please 
include your name, company name (if any), and ``FAR Case 2015-012'' on 
your attached document(s).
     Mail: General Services Administration, Regulatory 
Secretariat (MVCB), ATTN: Ms. Flowers, 1800 F Street NW., 2nd Floor, 
Washington, DC 20405-0001.
    Instructions: Please submit comments only and cite ``FAR Case 2015-
012'' in all correspondence related to this case. All comments received 
will be posted without change to http://www.regulations.gov, including 
any personal and/or business confidential information provided. To 
confirm receipt of your comment(s), please check www.regulations.gov, 
approximately two to three days after submission to verify posting 
(except allow 30 days for posting of comments submitted by mail).

FOR FURTHER INFORMATION CONTACT: Ms. Cecelia L. Davis, Procurement 
Analyst, at 202-219-0202 for clarification of content. For information 
pertaining to status or publication schedules, contact the Regulatory 
Secretariat at 202-501-4755. Please cite FAR Case 2015-012.

SUPPLEMENTARY INFORMATION:

I. Background

    This proposed rule revises the FAR to implement section 743 of 
Division E,

[[Page 3764]]

Title VII, of the Consolidated and Further Continuing Appropriations 
Act, 2015 (Pub. L. 113-235) and successor provisions in subsequent 
appropriations acts (and as extended in continuing resolutions). 
Section 743 prohibits the use of funds appropriated or otherwise made 
available by Division E or any other Act for a contract, grant, or 
cooperative agreement with an entity that requires employees or 
subcontractors of such entity seeking to report waste, fraud, 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.

II. Discussion and Analysis

A. FAR Changes

    This proposed rule implements section 743 by adding a new FAR 
section 3.909, Prohibition on contracting with entities that require 
certain internal confidentiality agreements. The proposed rule is 
written to also cover future successor provisions in subsequent 
appropriations acts and perpetuation of the requirement through 
continuing resolutions. This allows more seamless implementation. If at 
any point an appropriations act does not include a similar prohibition, 
the FAR will be modified accordingly.
    The proposed rule requires that each offeror, in order to be 
eligible for award, represent, by submission of its offer, that it does 
not require employees or subcontractors to sign or comply with such 
internal confidentiality agreements. The representation is in a new 
provision at FAR section 52.203-XX, Prohibition on Contracting with 
Entities that Require Certain Internal Confidentiality Agreements--
Representation, which must be included in all solicitations, except 
solicitations for personal services contracts with an individual, using 
funds subject to the prohibition, except that this requirement is 
implemented for commercial item solicitations by the part 12 provision 
at FAR section 52.212-3, paragraph (q). Contracting officers shall not 
insert this provision in solicitations for personal services contracts 
with an individual if the services are to be performed entirely by the 
individual, rather than by an employee of the contractor or a 
subcontractor.
    The new FAR clause 52.203-YY, Prohibition on Contracting with 
Entities that Require Certain Internal Confidentiality Agreements, 
notifies the contractor of the prohibition on use of funds for the 
contract, if the contractor is in noncompliance with the requirements 
of the clause. The clause also requires that contractors notify 
employees that any such agreements in pre-existing confidentiality 
agreements are no longer in effect. This notice could be accomplished 
through normal business communication channels, such as email. This 
clause must be included in all solicitations and resultant contracts, 
except for personal services contracts with individuals.
    Existing contracts must be modified to include the clause before 
obligating Fiscal Year (FY) 2015 or subsequent FY funds that are 
subject to the same prohibition on confidentiality agreements, except 
for personal services contracts with individuals.
    There are also conforming changes at FAR sections 3.900, 4.1202, 
52.204-8, and 52.212-5.

B. Applicability

    DoD, GSA, and NASA are proposing to apply this rulemaking to all 
solicitations and resultant contracts that are funded with FY 2015 
funds or subsequent FY funds that are subject to the same prohibition 
on confidentiality agreements, including contracts and subcontracts for 
acquisitions in amounts not greater than the simplified acquisition 
threshold, and contracts and subcontracts for the acquisition of 
commercial items, (including commercially available off-the-shelf 
items).
    Because the emphasis of section 743 is to prohibit restrictions on 
the ability of employees and subcontractors to report waste, fraud, or 
abuse to appropriate Government authorities, it is not in the best 
interest of the Federal Government to waive the applicability of 
section 743 to contracts and subcontracts in amounts not greater than 
the simplified acquisition threshold, or for the acquisition of 
commercial items (including commercially available off-the-shelf 
items).
    In making the initial determination to prohibit restrictions on the 
ability of employees and subcontractors to report waste, fraud, or 
abuse to appropriate Government authorities, it is not in the best 
interest of the Federal Government to waive the applicability of 
section 743 to contracts and subcontracts in amounts not greater than 
the simplified acquisition threshold, or for the acquisition of 
commercial items (including commercially available off-the-shelf 
items), since it would exclude a significant number of acquisitions and 
thereby further limit the number of contractor and subcontractor 
employees affected by section 743.
    The FAR Council considered the following factors: (1) The benefits 
of the policy in furthering Administration goals, (2) the extent to 
which the benefits of the policy would be reduced if an exemption is 
provided for acquisitions in amounts not greater than the simplified 
acquisition threshold, or for the acquisition of commercial items 
(including commercially available off-the-shelf items), and (3) the 
burden on contractors if the policy is applied to acquisitions in 
amounts not greater than the simplified acquisition threshold, or for 
the acquisition of commercial items (including commercially available 
off-the-shelf items).
    With respect of the first factor, the Administration is committed 
to implementing policy that ensures reducing waste, fraud, or abuse in 
all Federal acquisitions is achieved. This proposed rule makes certain 
that there are no restrictions that prevent contractors and 
subcontractors from reporting these types of situations to a designated 
Government representative.
    With respect to the second factor (the impact of excluding 
acquisitions in amounts not greater than the simplified acquisition 
threshold, and contracts and subcontracts for the acquisition of 
commercial items, (including commercially available off-the-shelf 
items) on the overall benefits of the underlying policy), the FAR 
Council believes impact on these benefits may inhibit contractor 
employees and subcontractors subject to such internal confidentiality 
agreements from reporting of waste, fraud, or abuse to appropriate 
Government authorities, thus allowing the perpetuation of such waste, 
fraud, or abuse.
    With respect to the third factor, this proposed rule imposes a 
minimal burden on offerors and contractors, requiring only that 
offerors represent by submission of the offer that they do not require 
certain internal confidentiality agreements, and contractors must 
notify employees that the prohibition and restrictions of any internal 
confidentiality agreements covered by the clause are no longer in 
effect. This proposed rule does not contain any information collection 
requirements.
    Public feedback is welcomed on the analysis and preliminary 
determination to cover acquisitions in amounts not greater than the 
simplified acquisition threshold, and contracts and subcontracts for 
the acquisition of

[[Page 3765]]

commercial items, (including commercially available off-the-shelf 
items). After receipt and analysis of public comments, and in 
accordance with 41 U.S.C. 1905, 1906, and 1907, the FAR Council and the 
Administrator for Federal Procurement Policy will determine whether to 
incorporate in the final rule this proposed applicability to all 
solicitations and resultant contracts, including contracts and 
subcontracts for acquisitions in amounts not greater than the 
simplified acquisition threshold, and contracts and subcontracts for 
the acquisition of commercial items, (including commercially available 
off-the-shelf items).

III. Executive Orders 12866 and 13563

    Executive Orders 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). Executive 
Order 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 Executive Order 12866, 
Regulatory Planning and Review, dated September 30, 1993. This proposed 
rule is not a major rule under 5 U.S.C. 804.

IV. Regulatory Flexibility Act

    DoD, GSA, and NASA do not expect this rule 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. 
However, an Initial Regulatory Flexibility Analysis (IRFA) has been 
performed and is summarized as follows:

    This action is necessary to implement section 743 of Division E, 
Title VII, of the Consolidated and Further Continuing Appropriations 
Act, 2015 (Pub. L. 113-235) and successor provisions in subsequent 
appropriations acts (and as extended in continuing resolutions). 
Section 743 prohibits the use of funds appropriated or otherwise 
made available by Division E or any other Act for a contract, grant, 
or cooperative agreement with an entity that requires employees or 
subcontractors of such entity seeking to report waste, fraud, 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.
    The objective of the rule is to remove restrictions on the 
ability of employees and subcontractors to report waste, fraud, or 
abuse to the appropriate Government authorities. The legal basis for 
the rule is the above cited statute.
    This rule will apply to all small entities that receive 
Government contracts awarded using funds subject to the restriction 
of section 743, or successor provisions in subsequent appropriations 
acts with the same prohibition (and as extended in continuing 
resolutions). Based on FPDS data for Fiscal Year 2014, this rule may 
affect up to 108,500 small entities per year (75,000 small entities 
receiving new awards, 33,500 modifications). However, it is doubtful 
that most small entities have any such prohibited internal 
confidentiality agreements with their employees and subcontractors.
    The rule has no significant economic impact on small entities. 
DoD, GSA, and NASA did not identify any significant alternatives 
that would reduce the impact on small entities and still meet the 
objectives of the statute.

    The Regulatory Secretariat has submitted a copy of the IRFA to the 
Chief Counsel for Advocacy of the Small Business Administration. A copy 
of the IRFA may be obtained from the Regulatory Secretariat. DoD, GSA, 
and NASA invite comments from small business concerns and other 
interested parties on the expected impact of this rule on small 
entities.
    DoD, GSA, and NASA will also consider comments from small entities 
concerning the existing regulations in subparts affected by the rule in 
accordance with 5 U.S.C. 610. Interested parties must submit such 
comments separately and should cite 5 U.S.C. 610 (FAR Case 2015-012), 
in correspondence.

V. Paperwork Reduction Act

    The proposed 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 Subject in 48 CFR Parts 3, 4, and 52

    Government procurement.

    Dated: January 11, 2016.
William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of 
Acquisition Policy, Office of Government-wide Policy.

    Therefore, DoD, GSA, and NASA are proposing to amend 48 CFR parts 
3, 4, and 52 as set forth below:

0
1. The authority citation for 48 CFR parts 3, 4, and 52 continues to 
read as follows:

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 
U.S.C. 20113.

PART 3--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF 
INTEREST

0
2. Amend section 3.900 by--
0
a. Removing from the introductory paragraph ``three different'' and 
adding ``various'' in its place;
0
b. Redesignating paragraph (c) as paragraph (d); and
0
c. Adding new paragraph (c) to read as follows:


3.900  Scope of subpart.

* * * * *
    (c) Section 743 of Division E, Title VII, of the Consolidated and 
Further Continuing Appropriations Act, 2015 (Pub. L. 113-235) and 
successor provisions in subsequent appropriations acts (and as extended 
in continuing resolutions), implemented in 3.909, applicable to all 
agencies.
* * * * *
0
3. Add section 3.909 to Subpart 3.9--Whistleblower Protections for 
Contractor Employees to read as follows:


3.909  Prohibition on contracting with entities that require certain 
internal confidentiality agreements.


3.909-1  Prohibition.

    (a) The Government is prohibited from using certain appropriated 
funds for a contract with an entity that requires employees or 
subcontractors of such entity seeking to report waste, fraud, 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. See section 743 of Division E, 
Title VII, of the Consolidated and Further Continuing Appropriations 
Act, 2015 (Pub. L. 113-235) and its successor provisions in subsequent 
appropriations acts (and as extended in continuing resolutions.)
    (b) The prohibition in paragraph (a) of this section does not 
contravene requirements applicable to Standard Form 312 (Classified 
Information Nondisclosure Agreement), Form 4414 (Sensitive 
Compartmented Information Nondisclosure Agreement), or any other form 
issued by a Federal department or agency governing the nondisclosure of 
classified information.


3.909-2  Representation by the offeror.

    (a) In order to be eligible for contract award, an offeror must 
represent that it does not require employees or

[[Page 3766]]

subcontractors of such entity seeking to report waste, fraud, 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. Any offeror that cannot so 
represent is ineligible for award of a contract.
    (b) The contracting officer may rely on an offeror's representation 
unless the contracting officer has reason to question the 
representation.


3.909-3  Solicitation provision and contract clause.

    When using funding subject to the prohibitions in 3.909-1(a) of 
this subpart, the contracting officer shall--
    (a)(1) Include the provision at 52.203-XX, Prohibition on 
Contracting with Entities that Require Certain Internal Confidentiality 
Agreements--Representation, in all solicitations, except as provided in 
paragraph (a)(2) of this section; and
    (2) Do not insert the provision in solicitations for a personal 
services contract with an individual if the services are to be 
performed entirely by the individual, rather than by an employee of the 
contractor or a subcontractor.
    (b)(1) Include the clause at 52.203-YY, Prohibition on Contracting 
with Entities that Require Certain Internal Confidentiality Agreements, 
in all solicitations and resultant contracts, other than personal 
services contracts with individuals.
    (2) Modify existing contracts, other than personal services 
contracts with individuals, to include the clause before obligating FY 
2015 or subsequent FY funds that are subject to the same prohibition on 
confidentiality agreements.

PART 4--ADMINISTRATIVE MATTERS

0
4. Amend section 4.1202, as amended in 80 FR 75905 (December 4, 2015), 
effective February 26, 2016, by redesignating paragraphs (a)(3) through 
(30) as paragraphs (a)(4) through (31), respectively; and adding new 
paragraph (a)(3) to read as follows:


4.1202  Solicitation provision and contract clause.

    (a) * * *
    (3) 52.203-XX, Prohibition on Contracting with Entities that 
Require Certain Internal Confidentiality Agreements--Representation.
* * * * *

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
5. Add sections 52.203-XX and 52.203-YY to read as follows:


52.203-XX  Prohibition on Contracting with Entities that Require 
Certain Internal Confidentiality Agreements--Representation.

    As prescribed in 3.909-3(a), insert the following provision:

Prohibition on Contraction With Entities That Require Certain Internal 
Confidentiality Agreements--Representation (Date)

    (a) In accordance with section 743 of Division E, Title VII, of 
the Consolidated and Further Continuing Appropriations Act, 2015 
(Pub. L. 113-235) and its successor provisions in subsequent 
appropriations acts (and as extended in continuing resolutions), 
Government agencies are not permitted to use funds appropriated (or 
otherwise made available) for contracts with an entity that requires 
employees or subcontractors of such entity seeking to report waste, 
fraud, 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, (Classified 
Information Nondisclosure Agreement), Form 4414 (Sensitive 
Compartmented Information Nondisclosure Agreement), 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 waste, fraud, 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.
    (End of provision)


52.203-YY  Prohibition on Contracting with Entities that Require 
Certain Internal Confidentiality Agreements.

    As prescribed in 3.909-3(b), insert the following clause:

Prohibition on Contraction With Entities That Require Certain Internal 
Confidentiality Agreements (Date)

    (a) The Contractor shall not require employees or subcontractors 
of such entity seeking to report waste, fraud, 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 (Classified 
Information Nondisclosure Agreement), Form 4414 (Sensitive 
Compartmented Information Nondisclosure Agreement), or any other 
form issued by a Federal department or agency governing the 
nondisclosure of classified information.
    (d) In accordance with section 743 of Division E, Title VII, of 
the Consolidated and Further Continuing 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.
    (e) The contractor shall include the substance of this clause, 
including this paragraph (e), in subcontracts under such contracts.
    (End of clause)
0
6. Amend section 52.204-8, as amended in 80 FR 75906 (December 4, 
2015), effective February 26, 2016, by--
0
a. Revising the date of the provision;
0
b. Redesignating paragraphs (c)(1)(iii) through (xxii) as (c)(1)(iv) 
through (xxiii), respectively; and
0
c. Adding new paragraph (c)(1)(iii).
    The revised and added text reads as follows:


52.204-8  Annual Representations and Certifications.

* * * * *

Annual Representations and Certifications (Date)

* * * * *
    (c)(1) * * *
    (iii) 52.203-XX, Prohibition on Contracting with Entities that 
Require Certain Internal Confidentiality Agreements--Representation. 
This provision applies to all solicitations.
* * * * *
0
7. Amend section 52.212-3, as amended at 80 FR 75907 (December 4, 
2015), effective February 26, 2016, by--
0
a. Revising the date of the provision;
0
b. Removing from the introductory paragraph and paragraph (b)(2) 
``through (q)'' and adding ``through (r)'' in its place; and
0
c. Adding paragraph (r).
    The revised and added text reads as follows:


52.212-3  Offeror Representations and Certifications--Commercial Items.

* * * * *

Offeror Representations and Certifications--Commercial Items (Date)

* * * * *

[[Page 3767]]

    (r)(1) In accordance with section 743 of Division E, Title VII, 
of the Consolidated and Further Continuing Appropriations Act, 2015 
(Pub. L. 113-235) and its successor provisions in subsequent 
appropriations acts (and as extended in continuing resolutions), 
Government agencies are not permitted to use appropriated (or 
otherwise made available) funds for contracts with an entity that 
requires employees or subcontractors of such entity seeking to 
report waste, fraud, 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.
    (2) The prohibition in paragraph (r)(1) of this provision does 
not contravene requirements applicable to Standard Form 312 
(Classified Information Nondisclosure Agreement), Form 4414 
(Sensitive Compartmented Information Nondisclosure Agreement), or 
any other form issued by a Federal department or agency governing 
the nondisclosure of classified information.
    (3) Representation. By submission of its offer, the Offeror 
represents that it does not require employees or subcontractors of 
such entity seeking to report waste, fraud, 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.

(End of provision)

0
8. Amend section 52.212-5, as amended at 80 FR 75907 (December 4, 
2015), effective February 26, 2016, by--
0
a. Revising the date of the clause;
0
b. Redesignating paragraphs (a)(1) through (3) as paragraphs (a)(2) 
through (4), respectively; and
0
c. Adding new paragraph (a)(1).
    The revised and added text reads as follows:


52.212-5  Contract Terms and Conditions Required To Implement Statutes 
or Executive Orders--Commercial Items.

* * * * *

Contract Terms and Conditions Required To Implement Statutes or 
Executive Orders--Commercial Items (Date)

    (a) * * *
    (1) 52.203-YY, Prohibition on Contracting with Entities that 
Require Certain Internal Confidentiality Agreements (DATE) (section 
743 of Division E, Title VII, of the Consolidated and Further 
Continuing Appropriations Act, 2015 (Pub. L. 113-235) and its 
successor provisions in subsequent appropriations acts (and as 
extended in continuing resolutions)).
* * * * *
[FR Doc. 2016-01050 Filed 1-21-16; 8:45 am]
 BILLING CODE 6820-EP-P