3.104-2 General
Source: FAR 3.104-2 on acquisition.gov
FAR 3.104-2 reinforces procurement integrity by requiring agency-level approval for supplementation and reminding all parties of related laws governing conflicts of interest, bribery, and information protection.
Overview
- FAR 3.104-2 outlines the general requirements for procurement integrity, implementing 41 U.S.C. chapter 21, and highlights the need for agency-level approval for any supplementation or additional clauses. It reminds agency officials and contractors of related statutes and regulations that govern prohibited conduct, such as bribery, gratuities, conflicts of interest, employment negotiations, post-employment restrictions, and the handling of sensitive procurement information.
Key Rules
- Agency Supplementation Approval
- Any agency-specific additions or clauses to FAR 3.104 must be approved by the senior procurement executive unless a higher authority is required by law.
- Awareness of Related Statutes
- Officials must be aware of and comply with other laws and regulations addressing bribery, gratuities, conflicts of interest, employment negotiations, post-employment activities, and information protection.
- Employment and Conflict of Interest
- Employees must avoid conflicts of interest, including seeking employment with offerors, and comply with disqualification requirements if such situations arise.
- Information Protection
- Restrictions exist on releasing procurement and contractor information, both before and after award, under various statutes including the Privacy Act and Trade Secrets Act.
Responsibilities
- Contracting Officers: Ensure agency supplementation is properly approved and that all relevant statutes are followed.
- Contractors: Avoid prohibited conduct, such as offering bribes or gratuities, and respect restrictions on information and employment negotiations.
- Agencies: Oversee compliance, approve supplementation, and educate personnel on related statutes and regulations.
Practical Implications
- This section exists to reinforce procurement integrity and prevent conflicts of interest or misuse of sensitive information. It impacts daily contracting by requiring vigilance against prohibited conduct and ensuring all parties understand the breadth of applicable laws. Common pitfalls include unintentional conflicts of interest, improper release of information, and failure to secure proper approvals for agency-specific rules.
(a) This section implements http://uscode.house.gov/view.xhtml?req=granuleid%3AUSC-prelim-title41-chapter21&saved=%7CZ3JhbnVsZWlkOlVTQy1wcmVsaW0tdGl0bGU0MC1jaGFwdGVyMzctZnJvbnQ%3D%7C%7C%7C0%7Cfalse%7Cprelim&edition=prelim" target="_blank">41 U.S.C. chapter 21, Restrictions on Obtaining and Disclosing Certain Information. Agency supplementation of 3.104, including specific definitions to identify individuals who occupy positions specified in 3.104-3(d)(1)(ii), and any clauses required by 3.104 must be approved by the senior procurement executive of the agency, unless a law establishes a higher level of approval for that agency.
(b) Agency officials are reminded that there are other statutes and regulations that deal with the same or related prohibited conduct, for example-
(1) The offer or acceptance of a bribe or gratuity is prohibited by 18 U.S.C. 201 and https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section4651&num=0&edition=prelim" target="_blank">10 U.S.C. 4651. The acceptance of a gift, under certain circumstances, is prohibited by http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3" target="_blank">5 U.S.C. 7353 and 5 CFR Part 2635;
(2) Contacts with an offeror during the conduct of an acquisition may constitute "seeking employment," (see Subpart F of 5 CFR Part 2636 and 3.104-3(c)(2)). Government officers and employees (employees) are prohibited by 18 U.S.C. 208 and 5 CFR Part 2635 from participating personally and substantially in any particular matter that would affect the financial interests of any person with whom the employee is seeking employment. An employee who engages in negotiations or is otherwise seeking employment with an offeror or who has an arrangement concerning future employment with an offeror must comply with the applicable disqualification requirements of 5 CFR 2635.604 and 2635.606. The statutory prohibition in 18 U.S.C. 208 also may require an employee’s disqualification from participation in the acquisition even if the employee’s duties may not be considered "participating personally and substantially," as this term is defined in 3.104-1;
(3) Post-employment restrictions are covered by 18 U.S.C. 207 and 5 CFR parts 2637 and 2641, that prohibit certain activities by former Government employees, including representation of a contractor before the Government in relation to any contract or other particular matter involving specific parties on which the former employee participated personally and substantially while employed by the Government. Additional restrictions apply to certain senior Government employees and for particular matters under an employee’s official responsibility;
(4) parts 14 and 15 place restrictions on the release of information related to procurements and other contractor information that must be protected under 18 U.S.C. 1905;
(5) Release of information both before and after award (see 3.104-4) may be prohibited by the Privacy Act (http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3" target="_blank">5 U.S.C. 552a), the Trade Secrets Act (18 U.S.C. 1905), and other laws; and
(6) Using nonpublic information to further an employee’s private interest or that of another and engaging in a financial transaction using nonpublic information are prohibited by 5 CFR 2635.703.