[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]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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 [email protected]. 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