[Federal Register Volume 83, Number 116 (Friday, June 15, 2018)]
[Rules and Regulations]
[Pages 28145-28149]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-12848]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 1, 9, 12, 13, and 52

[FAC 2005-99; FAR Case 2017-018; Item II; Docket No. 2017-0018, 
Sequence No. 1]
RIN 9000-AN57


Federal Acquisition Regulation: Violations of Arms Control 
Treaties or Agreements With the United States

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

ACTION: Interim rule.

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SUMMARY: DoD, GSA, and NASA are issuing an interim rule amending the 
Federal Acquisition Regulation (FAR) to implement a section of the 
National Defense Authorization Act for Fiscal Year 2017 that addresses 
measures against persons involved in activities that violate arms 
control treaties or agreements with the United States.

DATES: 
    Effective: June 15, 2018.
    Comment Date: Interested parties should submit written comments to 
the Regulatory Secretariat Division at one of the addresses shown below 
on or before August 14, 2018 to be considered in the formation of the 
final rule.

ADDRESSES: Submit comments in response to FAC 2005-99, FAR Case 2017-
018, by any of the following methods:
     Regulations.gov: http://www.regulations.gov. Submit 
comments via the Federal eRulemaking portal by searching for ``FAR Case 
2017-018.'' Select the link ``Comment Now'' that corresponds with ``FAR 
Case 2017-018.'' Follow the instructions provided on the screen. Please 
include your name, company name (if any), and ``FAR Case 2017-018'' on 
your attached document.
     Mail: General Services Administration, Regulatory 
Secretariat Division (MVCB), ATTN: Ms. Lois Mandell, 1800 F Street NW, 
2nd Floor, Washington, DC 20405.
    Instructions: Please submit comments only and cite FAC 2005-99, FAR 
Case 2017-018, 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 Division at 202-501-4755. Please cite FAC 2005-99, FAR Case 
2017-018.

SUPPLEMENTARY INFORMATION: 

I. Background

    This interim rule amends the FAR to implement a section of the 
National Defense Authorization Act (NDAA) for Fiscal Year 2017 that 
addresses measures against persons involved in activities that violate 
arms control treaties or agreements with the United States. This rule 
amends FAR part 9, Contractor Qualifications, and adds a provision at 
FAR 52.209-13 to implement section 1290 of the National Defense 
Authorization Act for Fiscal Year 2017 (Pub. L. 114-328), codified at 
22 U.S.C. 2593e.
    The President submits annually to Congress a report prepared by the 
Secretary of State with the concurrence of the Director of Central 
Intelligence and in consultation with the Secretary of Defense, the 
Secretary of Energy, and the Chairman of the Joint Chiefs of Staff, on 
the status of United States policy and actions with respect to arms 
control, nonproliferation, and disarmament, pursuant to section 403 of 
the Arms Control and Disarmament Act (22 U.S.C. 2593a). In this report, 
the Secretary of State assesses adherence to and compliance with arms 
control, nonproliferation, and disarmament agreements and commitments 
by the United States and other countries. This report is submitted in 
unclassified form, with classified annexes, as appropriate. The 
Department of State's most recent unclassified report submitted in 
April 2018 to Congress is available at https://www.state.gov/t/avc/rls/rpt/.
    The Secretary of the Treasury is required to submit to the 
appropriate Congressional committees a report, consistent with the 
protection of intelligence sources and methods, identifying every 
person with respect to whom there is credible information indicating 
that the person is--
     An individual who is a citizen, national, or permanent 
resident of, or an entity organized under the laws of, a noncompliant 
country; and

[[Page 28146]]

     Has engaged in any activity that contributed to or is a 
significant factor in the President's or the Secretary of State's 
determination that such country is noncompliant.
    The Secretary of the Treasury also identifies any person that has 
provided material support for such non-compliance to a person engaged 
in the noncompliant activities. This information will be posted, as 
appropriate and consistent with the protection of intelligence sources 
and methods, as an exclusion record in the System for Award Management 
(SAM) database. If the contractor is on the SAM Exclusions list, the 
contractor may not be awarded contracts, including those under the 
simplified acquisition threshold (SAT) or for commercial items (see FAR 
9.405 and 17.207), and contracts may not be renewed or extended.
    With some exceptions, the head of any executive agency is 
prohibited from entering into, renewing, or extending a contract for 
the procurement of products or services from any person so identified 
in a report under subsection (a) of 22 U.S.C. 2593e.

II. Discussion and Analysis

    This interim rule amends the FAR to add a new section, FAR 9.109, 
to address the prohibition on contracting with an entity involved in 
activities that violate arms control treaties or agreements with the 
United States. In addition to citation of the statute (22 U.S.C. 2593e) 
and the contracting prohibition therein, FAR 9.109 includes--
     The statutory exception from the contracting prohibition 
for the procurement of products or services along a major route of 
supply to a zone of active combat or a major contingency operation;
     Discussion of offeror certification and the remedies for 
submission of a false certification; and
     Prescription for use of the certification provision in 
each solicitation for the acquisition of products or services 
(including construction) that exceeds the SAT, other than solicitations 
for the acquisition of commercial items.
    The interim rule includes a provision at FAR 52.209-13, Violation 
of Arms Control Treaties or Agreements--Certification, to implement the 
statutory requirement for a certification from each offeror that the 
offeror, and any entity owned or controlled by the offeror, has not 
engaged in any activity that contributed to or is a significant factor 
in the President's or the Secretary of State's determination that such 
country is not in full compliance with its obligations undertaken in 
all arms control, nonproliferation, and disarmament agreements or 
commitments to which the United States is a participating state 
(subsection (a)(1)(A)(ii) of 22 U.S.C. 2593e). The provision also 
provides procedures to assist offerors in using the Secretary of State 
report as necessary to complete the certification. Initially, in this 
interim rule, this certification will not be included in the annual 
representations and certifications, because implementation 
considerations that will ensure minimum burden to prospective 
contractors are in development. The certification is not required for 
acquisitions under the SAT or for acquisition of commercial items, but 
if a contractor's activities related to violations of arms control 
treaties results in the contractor being added to the SAM Exclusions 
list, the contractor may not be awarded contracts, including those 
under the SAT or for commercial items. The rule also establishes that 
the remedies for rendering a false certification are debarment or 
suspension for not less than 2 years or termination of any contract 
resulting from the false certification.
    The Government will not consider the offer of an offeror that has 
not provided a certification in paragraph (b)(1) of the provision at 
52.209-13, unless the offeror provides with its offer information that 
the President of the United States has waived application under 22 
U.S.C. 2593e(d) or (e) or determined under 22 U.S.C. 2593e(g)(2) that 
the entity has ceased all activities for which measures were imposed 
under 22 U.S.C. 2593e(b).

III. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold and for Commercial Items, Including Commercially Available 
Off-the-Shelf Items

    Consistent with 41 U.S.C. 1905-1907, DoD, GSA, and NASA do not 
intend to apply the certification required by 22 U.S.C. 2593e to 
contracts at or below the SAT, or to contracts for the acquisition of 
commercial items, including commercially available off-the-shelf (COTS) 
items. However, when acquiring products or services (including 
construction) the Government is still prohibited from contracting with 
entities listed as excluded in the System for Award Management 
database.

A. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold.

    41 U.S.C. 1905 governs the applicability of laws to contracts or 
subcontracts in amounts not greater than the SAT. It is intended to 
limit the applicability of laws to such contracts or subcontracts. 41 
U.S.C. 1905 provides that if a provision of law contains criminal or 
civil penalties, or if the FAR 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. This law does not contain criminal or civil penalties and the FAR 
Council does not intend to make a written determination. Therefore, the 
certification required by this rule will only be included in 
solicitations that exceed the SAT.

B. Applicability to Contracts for the Acquisition of Commercial Items, 
Including COTS Items

    41 U.S.C. 1906 governs the applicability of laws to contracts and 
subcontracts for the acquisition of commercial items, and is intended 
to limit the applicability of laws to contracts and subcontracts for 
the acquisition of commercial items. 41 U.S.C. 1906 provides that if a 
provision of law contains criminal or civil penalties, or if the FAR 
Council makes a written determination that it is not in the best 
interest of the Federal Government to exempt commercial item contracts, 
the provision of law will apply to contracts and subcontracts for the 
acquisition of commercial items. Likewise, 41 U.S.C. 1907 governs the 
applicability of laws to COTS items, and provides the Administrator for 
Federal Procurement Policy with the decision authority to determine 
that it is in the best interest of the Federal Government to apply a 
provision of law to acquisitions of COTS items. The FAR Council and the 
Administrator for Federal Procurement Policy do not intend to make such 
determinations, and the certification required by the statute will not 
be included in contracts and subcontracts for the acquisitions of 
commercial items, including COTS items.

IV. 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 a significant

[[Page 28147]]

regulatory action and, therefore, was 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.

V. Executive Order 13771

    This interim rule is not subject to E.O. 13771, Reducing Regulation 
and Controlling Regulatory Costs, because this rule is issued with 
respect to a national security function of the United States. See 
section 4(a) of E.O. 13771.

VI. 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. 
Nevertheless, an Initial Regulatory Flexibility Analysis (IRFA) has 
been performed, and is summarized as follows:

    This rule implements section 1290 of the National Defense 
Authorization Act for Fiscal Year 2017, codified at 22 U.S.C. 2593e.
    The objective of the rule is to prohibit award to offerors that 
violate arms control treaties or agreements with the United States, 
or own or control entities that do so; and terminate contractors, 
and suspend or debar offerors and contractors that have provided 
false certifications regarding such violations. The statutes which 
are the legal basis for the FAR are 40 U.S.C. 121(c), 10 U.S.C. 
Chapter 137, and 51 U.S.C. 20113.
    Using Federal Procurement Data System (FPDS) data for FY 2016, 
this rule will apply to 7,616 small entities that are required to 
fill out the required certification.
    This rule will require certification from each offeror that 
submits an offer in response to a Government solicitation that 
exceeds the simplified acquisition threshold (SAT) and is not for 
the acquisition of a commercial item, including commercially 
available off-the-shelf (COTS) items. Initially, in this interim 
rule, this certification will not be included in the annual 
representations and certifications, because implementation 
considerations that will ensure minimum burden to prospective 
contractors are in development.
    The rule does not duplicate, overlap, or conflict with any other 
Federal rules.
    DoD, GSA, and NASA considered whether to apply the certification 
provision to contracts at or below the SAT and to the acquisition of 
commercial items, including COTS items, or to exempt such 
acquisitions in accordance with 41 U.S.C. 1905-1907. DoD, GSA, and 
NASA did not sign determinations that the provision should apply to 
contracts at or below the SAT and to the acquisition of commercial 
items, including COTS items, thus minimizing the impact on small 
business to the extent permitted by law.

    The Regulatory Secretariat Division 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 Division. 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 2017-018), 
in correspondence.

VII. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA) 
provides that an agency generally cannot conduct or sponsor a 
collection of information, and no person is required to respond to nor 
be subject to a penalty for failure to comply with a collection of 
information, unless that collection has obtained Office of Management 
and Budget (OMB) approval and displays a currently valid OMB Control 
Number.
    DoD, GSA, and NASA requested and OMB authorized emergency 
processing of an information collection involved in this rule, as OMB 
Control Number 9000-0198, consistent with 5 CFR 1320.13. DoD, GSA, and 
NASA have determined the following conditions have been met:
    a. The collection of information is needed prior to the expiration 
of time periods normally associated with a routine submission for 
review under the provisions of the Paperwork Reduction Act.
    b. The collection of information is essential to the mission of the 
agencies to ensure the Federal Government does not award contracts to 
offerors, and any entity owned or controlled by the offeror that has 
engaged in any activity that violates arms control treaties or 
agreements with the United States.
    c. The use of normal clearance procedures would prevent the 
collection of information from contractors, for national security 
purposes, as discussed in Section VIII of this preamble.
    Section 1290 of Public Law 114-328 (codified at 22 U.S.C. 2593e) 
went into effect on December 23, 2016. The implementation of this FAR 
case will protect against doing business with entities that engage in 
any activity that contributed to or is a significant factor in a 
country's failure to comply with arms control treaties or agreements 
with the United States. This action is necessary because of statutory 
requirements relating to a national security function of the United 
States.
    Moreover, DoD, GSA, and NASA cannot comply with the normal 
clearance procedures because public harm is reasonably likely to result 
if current clearance procedures are followed.
    DoD, GSA, and NASA intend to provide separate 60-day notice in the 
Federal Register requesting public comment on the information 
collections contained within this rule.
    Some numbers below are rounded.
    Agency: DoD, GSA, and NASA.
    Type of Information Collection: New Collection.
    Title of Collection: Violations of Arms Control Treaties or 
Agreements with the United States.
    Affected Public: Private Sector--Business.
    Total Estimated Number of Respondents: 11,634.
    Average Responses per Respondents: 8.6.
    Total Estimated Number of Responses: 99,796.
    Preparation Hours per Response: .4 hours.
    Total Annual Time Burden: 40,478.
    OMB Control Number: 9000-0198.
    The public reporting burden for this collection of information 
consists of a certification that the offeror and no entity owned or 
controlled by the offeror has engaged in any activity that contributes 
to the violation of arms control treaties or agreements with the United 
States. Public reporting burden for this collection of information is 
estimated to average .4 hours per response, including the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection information.
    In the subsequent 60 day notice published by DoD, GSA, and NASA 
will invite public comments.

VIII. Determination To Issue an Interim Rule

    A determination has been made under the authority of the Secretary 
of Defense (DoD), the Administrator of General Services (GSA), and the 
Administrator of the National Aeronautics and Space Administration 
(NASA) that urgent and compelling reasons exist to promulgate this 
interim rule without prior opportunity for public comment. This action 
is necessary because of statutory requirements relating to a national 
security function of the United States. Section 1290 of Public Law 114-
328 (codified at 22 U.S.C. 2593e) went into effect on December 23, 
2016. The implementation of this FAR case will protect against doing 
business with

[[Page 28148]]

entities that engage in any activity that contributed to or is a 
significant factor in a country's failure to comply with arms control 
treaties or agreements with the United States. Arms control, 
nonproliferation, and disarmament agreements can limit or reduce 
threats to the security of the United States and our allies, 
contributing to transparency and stability on a global and regional 
scale. Failure of participating countries to comply with the 
obligations and adhere to the commitments they have undertaken can 
present serious national security challenges. Therefore, robust 
compliance enforcement is a critical aspect of U.S. national security 
planning. However, pursuant to 41 U.S.C. 1707 and FAR 1.501-3(b), DoD, 
GSA, and NASA will consider public comments received in response to 
this interim rule in the formation of the final rule.

List of Subjects in 48 CFR Parts 1, 9, 12, 13, and 52

    Government procurement.

    Dated: June 7, 2018.
William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of 
Acquisition Policy, Office of Government-wide Policy.

    Therefore, DoD, GSA, and NASA amend 48 CFR parts 1, 9, 12, 13, and 
52 as set forth below:

0
1. The authority citation for 48 CFR parts 1, 9, 12, 13, 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 1--FEDERAL ACQUSITION REGULATION SYSTEM


1.106   [Amended]

0
2. Amend section 1.106, in the table following the introductory text, 
by adding in numerical sequence, FAR segment ``52.209-13'' and its 
corresponding OMB control number ``9000-0198''.

PART 9--CONTRACTOR QUALIFICATIONS

0
3. Add sections 9.109, 9.109-1, 9.109-2, 9.109-3, 9.109-4, and 9.109-5 
to read as follows:

9.109   Prohibition on contracting with an entity involved in 
activities that violate arms control treaties or agreements with the 
United States.


9.109-1   Authority.

    This section implements 22 U.S.C. 2593e.


9.109-2   Prohibition.

    Contracting officers shall not award, renew, or extend a contract 
for the procurement of products or services with an entity identified 
as excluded in the System for Award Management database, specifically 
for this subpart, on the basis of involvement in activities that 
violate arms control treaties or agreements with the United States.


9.109-3  Exception.

    The prohibition in 9.109-2 does not apply to contracts for the 
procurement of products or services along a major route of supply to a 
zone of active combat or major contingency operation, as specified in 
statute or by the cognizant Combatant Commander, in consultation with 
the Chief of Mission. As of May 10, 2018, countries along the major 
route of supply to support operations in Afghanistan are Afghanistan, 
Georgia, the Kyrgyz Republic, Pakistan, the Republic of Armenia, the 
Republic of Azerbaijan, the Republic of Kazakhstan, the Republic of 
Tajikistan, the Republic of Uzbekistan, and Turkmenistan.


9.109-4   Certification by the offeror.

    (a) In order to be eligible for contract award, an offeror is 
required to--
    (1)(i) Certify that it does not engage and has not engaged in any 
activity that contributed to or was a significant factor in the 
President's or Secretary of State's determination that a foreign 
country is in violation of its obligations undertaken in any arms 
control, nonproliferation, or disarmament agreement to which the United 
States is a party, or is not adhering to its arms control, 
nonproliferation, or disarmament commitments in which the United States 
is a participating state. The determinations are described in the most 
recent unclassified annual report provided to Congress pursuant to 
section 403 of the Arms Control and Disarmament Act (22 U.S.C. 2593a). 
The report is available via the internet at https://www.state.gov/t/avc/rls/rpt/; and
    (ii) Similarly certify with regard to any entity owned or 
controlled by the offeror; or
    (2) Provide with its offer information that the President of the 
United States has--
    (i) Waived application under 22 U.S.C. 2593e(d) or (e); or
    (ii) Determined under 22 U.S.C. 2593e(g)(2) that the entity has 
ceased all activities for which measures were imposed under 22 U.S.C. 
2593e(b).
    (b) If certifying in accordance with 52.209-13(b)(1), the Offeror 
is required to submit the certification with the offer. It is not 
included in the annual representations and certifications in the System 
for Award Management database.
    (c) The contracting officer may rely on an offeror's certification 
unless the contracting officer has reason to question the 
certification.
    (d) An offeror that falsely certifies under 52.209-13 will be 
subject to such remedies as suspension or debarment for a period of not 
less than 2 years, subject to the procedures set forth in subpart 9.4 
(including 9.406-1 or 9.407-1), or termination of any contract 
resulting from the false certification.


9.109-5   Solicitation provision.

    Unless the exception at 9.109-3 applies, the contracting officer 
shall include the provision at 52.209-13, Violation of Arms Control 
Treaties or Agreements--Certification, in each solicitation for the 
acquisition of products or services (including construction) that 
exceeds the simplified acquisition threshold, other than solicitations 
for the acquisition of commercial items.

0
4. Amend section 9.405 by adding a sentence to the end of paragraph (b) 
to read as follows:

9.405   Effect of listing.

* * * * *
    (b) * * * In addition, agencies shall not extend contracts with 
contractors that have been declared ineligible pursuant to 22 U.S.C. 
2593e.
* * * * *

0
5. Amend section 9.406-4 by revising paragraphs (a)(1)(i) and (ii) and 
adding paragraph (a)(1)(iii) to read as follows:

9.406-4   Period of debarment.

    (a)(1) * * *
    (i) Debarment for violation of the provisions of 41 U.S.C. chapter 
81, Drug-Free Workplace (see 23.506) may be for a period not to exceed 
5 years;
    (ii) Debarments under 9.406-2(b)(2) shall be for 1 year unless 
extended pursuant to paragraph (b) of this section; and
    (iii) Debarments pursued as a remedy under 9.109-4(d), for a false 
certification regarding violations of arms control treaties or 
agreements with the United States, shall be for a period of not less 
than 2 years.
* * * * *

PART 12--ACQUISITION OF COMMERCIAL ITEMS

0
6. Amend section 12.503 by--
0
a. Redesignating paragraphs (b)(1) through (3) as paragraphs (b)(2) 
through (4), respectively; and

[[Page 28149]]

0
b. Adding a new paragraph (b)(1) to read as follows:


12.503  Applicability of certain laws to Executive agency contracts for 
the acquisition of commercial items.

* * * * *
    (b) * * *
    (1) 22 U.S.C. 2593e, Requirement for a certification under Measures 
Against Persons Involved in Activities that Violate Arms Control 
Treaties or Agreements with the United States (see 9.109).
* * * * *

PART 13--SIMPLIFIED ACQUISITION PROCEDURES

0
7. Amend section 13.005 by adding paragraph (a)(11) to read as follows:


13.005  List of laws inapplicable to contracts and subcontracts at or 
below the simplified acquisition threshold.

    (a) * * *
    (11) 22 U.S.C. 2593e (Measures Against Persons Involved in 
Activities that Violate Arms Control Treaties or Agreements with the 
United States). (The requirement at 22 U.S.C. 2593e(c)(3)(B) to provide 
a certification does not apply).
* * * * *

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
8. Add section 52.209-13 to read as follows:


52.209-13   Violation of Arms Control Treaties or Agreements--
Certification.

    As prescribed in 9.109-5, insert the following provision:

Violation of Arms Control Treaties or Agreements--Certification (JUN 
2018)

    (a) This provision does not apply to acquisitions below the 
simplified acquisition threshold or to acquisitions of commercial 
items as defined at FAR 2.101.
    (b) Certification. [Offeror shall check either (1) or (2).]
    ____ (1) The Offeror certifies that--
    (i) It does not engage and has not engaged in any activity that 
contributed to or was a significant factor in the President's or 
Secretary of State's determination that a foreign country is in 
violation of its obligations undertaken in any arms control, 
nonproliferation, or disarmament agreement to which the United 
States is a party, or is not adhering to its arms control, 
nonproliferation, or disarmament commitments in which the United 
States is a participating state. The determinations are described in 
the most recent unclassified annual report provided to Congress 
pursuant to section 403 of the Arms Control and Disarmament Act (22 
U.S.C. 2593a). The report is available via the internet at https://www.state.gov/t/avc/rls/rpt/; and
    (ii) No entity owned or controlled by the Offeror has engaged in 
any activity that contributed to or was a significant factor in the 
President's or Secretary of State's determination that a foreign 
country is in violation of its obligations undertaken in any arms 
control, nonproliferation, or disarmament agreement to which the 
United States is a party, or is not adhering to its arms control, 
nonproliferation, or disarmament commitments in which the United 
States is a participating state. The determinations are described in 
the most recent unclassified annual report provided to Congress 
pursuant to section 403 of the Arms Control and Disarmament Act (22 
U.S.C. 2593a). The report is available via the internet at https://www.state.gov/t/avc/rls/rpt/; or
    ____ (2) The Offeror is providing separate information with its 
offer in accordance with paragraph (d)(2) of this provision.
    (c) Procedures for reviewing the annual unclassified report (see 
paragraph (b)(1) of this provision). For clarity, references to the 
report in this section refer to the entirety of the annual 
unclassified report, including any separate reports that are 
incorporated by reference into the annual unclassified report.
    (1) Check the table of contents of the annual unclassified 
report and the country section headings of the reports incorporated 
by reference to identify the foreign countries listed there. 
Determine whether the Offeror or any person owned or controlled by 
the Offeror may have engaged in any activity related to one or more 
of such foreign countries.
    (2) If there may have been such activity, review all findings in 
the report associated with those foreign countries to determine 
whether or not each such foreign country was determined to be in 
violation of its obligations undertaken in an arms control, 
nonproliferation, or disarmament agreement to which the United 
States is a party, or to be not adhering to its arms control, 
nonproliferation, or disarmament commitments in which the United 
States is a participating state. For clarity, in the annual report 
an explicit certification of non-compliance is equivalent to a 
determination of violation. However, the following statements in the 
annual report are not equivalent to a determination of violation:
    (i) An inability to certify compliance.
    (ii) An inability to conclude compliance.
    (iii) A statement about compliance concerns.
    (3) If so, determine whether the Offeror or any person owned or 
controlled by the Offeror has engaged in any activity that 
contributed to or is a significant factor in the determination in 
the report that one or more of these foreign countries is in 
violation of its obligations undertaken in an arms control, 
nonproliferation, or disarmament agreement to which the United 
States is a party, or is not adhering to its arms control, 
nonproliferation, or disarmament commitments in which the United 
States is a participating state. Review the narrative for any such 
findings reflecting a determination of violation or non-adherence 
related to those foreign countries in the report, including the 
finding itself, and to the extent necessary, the conduct giving rise 
to the compliance or adherence concerns, the analysis of compliance 
or adherence concerns, and efforts to resolve compliance or 
adherence concerns.
    (4) The Offeror may submit any questions with regard to this 
report by email to NDAA1290Cert@state.gov. To the extent feasible, 
the Department of State will respond to such email inquiries within 
3 business days.
    (d) Do not submit an offer unless--
    (1) A certification is provided in paragraph (b)(1) of this 
provision and submitted with the offer; or
    (2) In accordance with paragraph (b)(2) of this provision, the 
Offeror provides with its offer information that the President of 
the United States has--
    (i) Waived application under U.S.C. 2593e(d) or (e); or
    (ii) Determined under 22 U.S.C. 2593e(g)(2) that the entity has 
ceased all activities for which measures were imposed under 22 
U.S.C.2593e(b).
    (e) Remedies. The certification in paragraph (b)(1) of this 
provision is a material representation of fact upon which reliance 
was placed when making award. If it is later determined that the 
Offeror knowingly submitted a false certification, in addition to 
other remedies available to the Government, such as suspension or 
debarment, the Contracting Officer may terminate any contract 
resulting from the false certification.


(End of provision)

[FR Doc. 2018-12848 Filed 6-14-18; 8:45 am]
 BILLING CODE 6820-EP-P