[Federal Register Volume 87, Number 188 (Thursday, September 29, 2022)]
[Rules and Regulations]
[Pages 59028-59030]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-20965]


-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Part 252

[Docket DARS-2022-0022]
RIN 0750-AL52


Defense Federal Acquisition Regulation Supplement: Representation 
Relating to Compensation of Former DoD Officials (DFARS Case 2021-D030)

AGENCY: Defense Acquisition Regulations System, Department of Defense 
(DoD).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: DoD is issuing a final rule amending the Defense Federal 
Acquisition Regulation Supplement (DFARS) to clarify the requirement 
for offerors to represent whether former DoD officials employed by the 
offeror are in compliance with post-employment restrictions.

DATES: Effective September 29, 2022.

FOR FURTHER INFORMATION CONTACT: Monica Wideman, telephone 703-717-
3446.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD is issuing a final rule to implement a recommendation of the 
Government Accountability Office (GAO). Section 851 of the National 
Defense Authorization Act (NDAA) for Fiscal Year (FY) 2007 (Pub. L. 
109-364) required GAO to report on recent employment of former DoD 
officials by major defense contractors. In May 2008, GAO issued a 
report titled ``Defense Contracting: Post-Government Employment of 
Former DoD Officials Needs Greater Transparency (GAO-08-485).'' GAO 
concluded that greater transparency was needed by DoD with respect to 
former senior and acquisition executives (i.e., DoD ``covered 
officials'') to ensure compliance with applicable post-employment 
restrictions.
    Subsequently, DoD issued a final rule in the Federal Register at 76 
FR 71826, effective November 18, 2011, which implemented the GAO 
recommendation by adding a new representation for offerors to complete 
and provide as part of each proposal, including proposals for 
commercial items. The representation is required only one time rather 
than continuously throughout contract performance. The solicitation 
provision at DFARS 252.203-7005, Representation Relating to 
Compensation of Former DoD Officials, is a representation that all of 
the offeror's employees who are former DoD officials are in compliance 
with all post-employment restrictions at 18 U.S.C. 207, 41 U.S.C. 2101-
2107, and 5 CFR parts 2637 and 2641, as well as Federal Acquisition 
Regulation (FAR) 3.104-2.
    A more recent GAO Report titled ``GAO-21-104311, Post-Government 
Employment Restrictions-DoD Could Further Enhance Its Compliance 
Efforts Related to Former Employees Working for Defense Contractors,'' 
dated September 9, 2021, states that in 2011 DoD modified its 
acquisition regulations to require that contractors, when submitting 
proposals in response to DoD solicitations, represent their employees' 
compliance with several post-Government employment restrictions. 
Although GAO recognized that DoD has provided guidance on section 1045 
of the NDAA for FY 2018 (Pub. L. 115-91), to include DoD Instruction 
1000.32, ``Prohibition of Lobbying Activity by Former DoD Senior 
Officials,'' the GAO report pointed out that DoD has not added section 
1045 of the NDAA for FY 2018 to the list of post-Government

[[Page 59029]]

employment ethics provisions currently enumerated within the 
solicitation provision at DFARS 252.203-7005. Specifically, since 
section 1045, which restricts lobbying activities with respect to DoD 
matters by former DoD senior officials, was enacted after the addition 
of DFARS 252.203-7005 in 2011, it was not originally included in the 
list of enumerated post-Government employment provisions. Therefore, 
GAO recommended that DoD assess whether to amend the DFARS to add 
section 1045 to the required offeror representation concerning 
compliance with post-Government employment restrictions.
    This final rule revises DFARS provision 252.203-7005, 
Representation Relating to Compensation of Former DoD Officials, to add 
the statutory reference to section 1045 of the NDAA for FY 2018 to the 
existing list of post-Government employment restrictions to ensure 
that, to the extent the individuals are ``covered DoD officials'' under 
the definition at DFARS 252.203-7000, the lobbying activities 
restrictions contained in section 1045 are included among the 
enumerated post-Government employment ethics provisions. Additionally, 
the provision language was revised to clarify that former personnel are 
required to comply with all applicable post-Government employment 
restrictions, not just those enumerated in the solicitation provision 
at DFARS 252.203-7005.
    An obsolete reference to 5 CFR 2637 is removed from the provision. 
Part 2637 was removed from title 5 of the CFR in a final rule published 
in the Federal Register at 73 FR 36168 (June 25, 2008).

II. Publication of This Final Rule for Public Comment Is Not Required 
by Statute

    The statute that applies to the publication of the FAR is 41 U.S.C. 
1707, Publication of Proposed Regulations. Subsection (a)(1) of the 
statute requires that a procurement policy, regulation, procedure, or 
form (including an amendment or modification thereof) must be published 
for public comment if it relates to the expenditure of appropriated 
funds, and has either a significant effect beyond the internal 
operating procedures of the agency issuing the policy, regulation, 
procedure, or form, or has a significant cost or administrative impact 
on contractors or offerors.
    Under the existing DFARS requirement, offerors must represent that 
their employees subject to section 847 of the NDAA for FY 2008 are in 
compliance with applicable post-Government employment restrictions, 
which are outlined in the written post-Government employment opinion 
letter issued pursuant to section 847. Following the enactment of 
section 1045 of the NDAA for FY 2018, DoD included the requirement in 
DoD Instruction 1000.32, Prohibition of Lobbying Activity by Former DoD 
Senior Officials, that post-Government employment opinions address 
section 1045, where applicable. Therefore, this final rule is not 
required to be published for public comment, because it does not 
constitute a significant DFARS revision within the meaning of FAR 
1.501-1 and does not have a significant cost or administrative impact 
on contractors or offerors (see Section I of this preamble).

III. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold (SAT) and for Commercial Services and Commercial Products, 
Including Commercially Available Off-the-Shelf (COTS) Items

    This rule amends the solicitation provision at DFARS 252.203-7005. 
However, this rule does not impose any new requirements on contracts at 
or below the SAT or for commercial services or commercial products, 
including COTS items. The provision will continue to apply to 
acquisitions at or below the SAT and to acquisitions of commercial 
services and commercial products, 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 not a significant regulatory action and, therefore, was not 
subject to review under section 6(b) of E.O. 12866, Regulatory Planning 
and Review, dated September 30, 1993.

V. Congressional Review Act

    As required by the Congressional Review Act (5 U.S.C. 801-808) 
before an interim or final rule takes effect, DoD will submit a copy of 
the interim or final rule with the form, Submission of Federal Rules 
under the Congressional Review Act, to the U.S. Senate, the U.S. House 
of Representatives, and the Comptroller General of the United States. A 
major rule under the Congressional Review Act cannot take effect until 
60 days after it is published in the Federal Register. The Office of 
Information and Regulatory Affairs has determined that this rule is not 
a major rule as defined by 5 U.S.C. 804.

VI. Regulatory Flexibility Act

    The Regulatory Flexibility Act does not apply to this rule because 
this final rule does not constitute a significant DFARS revision within 
the meaning of FAR 1.501-1, and 41 U.S.C. 1707 does not require 
publication for public comment.

VII. Paperwork Reduction Act

    This rule does not contain any information collection requirements 
that require the approval of the Office of Management and Budget under 
the Paperwork Reduction Act (44 U.S.C. chapter 35).

List of Subjects in 48 CFR Part 252

    Government procurement.

Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition Regulations System.

    Therefore, 48 CFR part 252 is amended as follows:

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
1. The authority citation for 48 CFR part 252 continues to read as 
follows:

    Authority:  41 U.S.C. 1303 and 48 CFR chapter 1.


0
2. Amend section 252.203-7005 by--
0
a. Revising the provision date;
0
b. Revising paragraph (b); and
0
c. Adding ``(End of provision)'' at the end of the provision.
    The addition and revisions read as follows:


252.203-7000  Representation Relating to Compensation of Former DoD 
Officials.

* * * * *

Representation Relating to Compensation of Former DOD Officials (Sep 
2022)

* * * * *
    (b) By submission of this offer, the Offeror represents, to the 
best of its knowledge and belief, that all covered DoD officials 
employed by or otherwise receiving compensation from the Offeror, 
and who are expected to undertake activities on behalf of the 
Offeror for any resulting contract, are presently in compliance with 
all applicable post-employment restrictions, including those 
contained in 18 U.S.C. 207, 41 U.S.C. 2101-2107, 5 CFR part 2641, 
section 1045 of the National Defense Authorization Act for Fiscal 
Year 2018 (Pub. L. 115-91), and Federal Acquisition Regulation 
3.104-2.


[[Page 59030]]


    (End of provision)

[FR Doc. 2022-20965 Filed 9-28-22; 8:45 am]
BILLING CODE 5001-06-P